THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/americanlawproce10chic 


AMERICAN 
LAW  AND  PROCEDUEE 


VOLUMES  I  TO  XII  PREPARED  UNDER  THE 
EDITORIAL  SUPERVISION  OF 

JAMES  PARKER  HALL,  A.B.,LL.B. 

Dean  of  Law  School   University  of  Chicago 

AND 

VOLUMES  XIII  AND  XIV  BY 

JAMES  DeWITT  ANDREWS,  LL.D. 

FORMERLY  OF  THE  LAW  FACULTY 
NORTHWESTERN  UNIVERSITY 

Author  of  "Andrews'  American  Law,"   Editor  "Andrews' 

Stephens'  Pleading,"  "Cooley's  Blackstone," 

"Wilson's  Works,"  etc. 


A  Systematic,  Non-Technical  Treatment  of  American 

Law  and  Procedure,  Written  by  Professors  and 

Teachers  in  Law  Schools,  and  by  Legal 

Writers  of  Recognized  Ability. 


PUBLISHED  BY 

LA  SALLE  EXTENSION  UNIVERSITY 

CHICAGO 


T 


.10 


AMERICAN  LAW  AND  PROCEDURE 

VOLUME  X. 

PREPARED  UNDER  THE  EDITORIAL  SUPERVISION  OF 

JAMES  PARKER  HALL,  A.  B.,  LL.B. 

Dean  of  the  University  of  Chicago  Law  School 


INTERNATIONAL  LAW 

BY 

ARNOLD  BENNETT  HALL 

A.  B.  (Franklin  College),  J.  D.  (University  of  Chicago) 

Assistant  Professor,  Political  Science,  University  of  Wisconsin 


DAMAGES 

BY 

ARTHUR  MARTIN  CATHCART 

A.  B.  (Leland  Stanford  Jr.  University) 

Professor  of  Law,  Leland  Stanford  Jr.  University 


BANKRUPTCY 

BY 
FRANK  WILLIAM  HENICKSMAN 
B.,  A.  M.  (Indiana  University),  J.  D.  (University  of  Chicago) 
Late  Lecturer  in  Law,  University  of  Chicago 


JUDGMENTS 

BY 

JOHN  ROMAIN  ROOD 

LL.  B.  (University  of  Michigan) 

Professor  of  Law,  University  of  Michigan 


ATTACHMENTS,  GARNISHMENTS 
AND  EXECUTIONS 

BY 

JOHN  ROMAIN  ROOD 

LL.  B.  (University  of  Michigan) 

Professor  of  Law,  University  of  Michigan 


COPYRIGHT,   1910,  1911,   1912,   1913. 
BY 

LaSalle  extension  university 


CONTENTS 


INTERNATIONAL  LAW. 

CHAPTER  I. 

General  Conceptions. 

§     1.     Definition  and  scope  of  subject 1 

§     2.     Nature  and  sources  of  interaatioual  law 2 

§     3.     History  of  international  law 4 

§     4.     International  law  part  of  municipal  law 5 

§     5.     Sovereign  states  are  the  persons  in  international  law 6 

§     6.     Distinction  between  a  government  and  a  state T 

§     7.    Part-sovereign  states 8 

§     8.    Recognition  of  new  states 9 

§     9.    Recognition  of  billigerency 10 

§  10.     Effects  of  changes  of  sovereignty 31 

CHAPTER  II. 
Independence  and  Equality  of  States. 

§  11.    Right  of  existence  and  independence 14 

§  12.     Extra-territorial  -acts  in  self-defense 115 

§  13.     Intervention   1^ 

§  14.    Interventions  of  right 17 

§  15.    Interventions  that  are  only  justifiable 18 

§  16.     Intervention  against  wrong-doing 19 

§  17.    Intervention  to  secure  balance  of  power 20 

§  18,     Other  causes  of  intervention 20 

§  19.    Distinction  between  law  and  policy  as  basis  for  inten^en- 

tion  21 

CHAPTER  III. 

Territorial  Domains  and  Jurisdiction. 

§  20.    Jurisdiction    23 

SECTION    1. 

Territorial  Jurisdiction. 

§  20a.  Territorial  property 23 

§  21.    Acquisition  of  territory:     Discovei-y  and  occupation 24 

i 


ii  .CONTENTS 

§  22.     Same:    Extent  of  territory  acquired  by  discovery 25 

§  23.     Same :     Conquest  and  cession 26 

§  24.     Same :    Prescription 26 

§  25.     Same :     Accretion 27 

§  26.     Boundaries  of  state  territories 28 

§  27.    River    boundaries 23 

§  28.    Lake  and  sea  boundaries 29 

§  29.     Qualified  jurisdiction :     Protectorates 29 

§  30.     Same :     Spheres  of  influence 30 

SECTION    2. 

Fluvial  and  Maritime  Jurisdiction. 

§  31.    Rivers    31 

§  32.    Entirely  enclosed  lakes  and  seas 32 

§  33.     Gulfs  and  bays 33 

§  34.     Straits   31 

§  35.     Canals    34 

§  36.     Marginal    seas 35 

§  37.     Nature  of  jurisdiction  over  territorial  waters 36 

§  38.     Same :     Right  of  innocent  passage 37 

§  39.  Jurisdiction  over  vessels  on  high  seas  and  in  foreign  ports.  37 

§  40.    Piracy    38 

§  41.    Fisheries    39 

SECTION    3. 

Personal  Jurisdiction. 

§  42.    Nationality  by  birth 40 

§  43.     Expatriation    41 

§  44.  Status  of  aliens  who  have  declared  intention  of  expatria- 
tion     42 

§  45.    Jurisdiction  over  aliens 43 

§  46.     Foreign  sovereigns 43 

§  47.     Diplomatic    agents 44 

§  48.     Same  (continued) 46 

§  49.     Foreign  armed  forces 46 

§  50.    Public  ships 47 

§  51.     Merchant    vessels 48 

§  52.     Consular  jurisdiction 49 

§  53.     Extradition 49 

§  54.     Same :  Political  offences 50 


CONTENTS  iii 

CHAPTER  IV. 
Relations  Between  States  in  Peace. 

SECTION    1. 

Diplomatic  Relations. 

§  55.     Diplomatic  agents  and  their  functions 51 

§  56.     Diplomatic  ceremonial 51 

§  57.     Acceptance  of  diplomatic  agents 52 

§  58.     Refusal  to  accept  particular  individuals  as  agents 53 

§  59.     Commencement  of  diplomatic  missions 54 

§  60.     Termination  of  diplomatic  missions 54 

§  61.     Grounds  for  dismissing  envoys 54 

§  62.     Immunity  of  diplomatic  agents 56 

§  63.     Coi.sular    agents 56 

§  64.     Same :      Immunity 56 

SECTION    2. 
Treaties. 

§  65.    Nature  and  classification  of  treaties 57 

§  66.     Negotiation  and  ratification 58 

§  67.    Validity  of  treaties 59 

§  68.     Implied  conditions  in  treaties 60 

§  69.     Interpretation    61 

§  70.     Same :     Conflicts  with  other  treaties  or  laws 62 

§  71.     Extinction  and  renewal 63 

§  72.    Same :    Effect  of  war 63 

SECTION    3. 

Pacific  Settlement  of  Disputes. 

§  73.    In   general 64 

§  74.    International    arbitration 65 

§  75.     The  Hague  Conference 65 

§  76.    Means  of  compialsion  short  of  war:    Retorsion 66 

§  77.     Same :     Reprisals 67 

§78.    Same:    Pacific  blockade 67 

CHAPTER  V. 

War. 

§  79.    In    general 69 

§  80.     Declaration  and  commencement  of  war 69 

§  81.    Effect  of  war  on  treaties 70 


iv  CONTENTS 

SECTION    1. 

Effects  upon  "Persons  and  Business  Belations. 

§  82.  Combatants  and  non-combatants 70 

§  83.  ''Reasonable  necessities  of  war" 71 

§  84.  Rights  of  non-combatants 72 

§  85.  Treatment  of  combatants:    Giving.    Quarter 73 

8  86.  Same :     Conventional  provisions 74 

§  87.  Prisoners  of  war •  75 

§  88.  Enemy  character  of  persons 76 

§  89,  Peaceful  intercourse  between  enemies 77 

§  90.  Belligerent  subjects  in  hostile  territory  at  outbreak  of  war.  79 

SECTION    2. 

Property  of  Enemy. 

§  91.     Public  property  on  land :     Movables 79 

§  92.     Same :     Immovables 80 

§  93.     Private  property  on  land :     Immovables 81 

§  94.     Same :     Movables.     Contributions 81 

§  95.     Same :      Requisitions 82 

§  96.     Confiscation  of  public  and  private  debts 83 

§  97.     Enemy  character  of  property  upon  the  seas 83 

§  98.     Capture  and  confiscation  of  property  at  sea 84 

§  99.     Same:      Exceptions 85 

§100.     Same:     When  title  vests 85 

SECTION    3. 

Military  Occupation  of  Territory. 

§101.    Military  occupation 86 

§102.     Duties  of  local  officers 87 

§103.     Limitations  of  occupying  authority 87 

SECTION    4. 

Methods  of  Warfa%e. 

§104.     General    principles 88 

§105.     Forbidden  instruments  and  acts  of  warfare 88 

§106.     Use  of  deceit  and  spies 89 

§107.     Privateering   90 

§108.     Volunteer  navy  90 

§109.     Punishment  of  offenders  against  laws  of  war 91 

§110.     Nou-hostile   relations 91 

SECTION   5. 

Termination   of   War. 

§111.     Modes  of  termination  of  war 92 


CONTENTS  V 

§112.    Effect  of  treaty  of  peace 93 

§113.    Postliminium    93 

CHAPTER  VI. 
Neutrality. 

SECTION    1. 

Between  Belligerent  and  Neutral  States. 

§114.     Definition  of  neutrality 95 

§115.    Underlying  principle 95 

^116.     Inviolability   of   neutral   territorial   jurisdiction 96 

§117.     Local  neutral  regulations 96 

§118.    Neutral    must    prevent    assistance    of    belligerents    in    its 

territory     97 

§119.     Same :     Equipment  of  soldiers  and  ships 98 

§120.     Neutral  must  render  no  direct  assistance 99 

§121.    Right  of  asylum 99 

SECTION    2. 

Blockade. 

§122.    Definition  of  blockade 99 

§123.    When  effective    100 

§124.     Breach  of  blockade 101 

§125.     Same  (continued) 102 

SECTION   3. 

Contraband  and  Unneutral  Service. 

§126.     Definition  of  contraband 103 

§127.     Carriage   of  contraband 103 

§128.     Same :      Penalty 104 

§129.     Unneutral  services 105 

§130.     Right  of  visit  and  search 106 

DAMAGES. 

CHAPTER  I. 
Preliminary  Topics. 

SECTION    1. 

General  Survey. 
§     1.     Damages  the  ordinary  redress  afforded  by  a  court  of  law.  .107 

§     2.     Damages  distinguished  from  injury  and  damage 109 

§     3.     Damnum   absque   injuria — ''Damage  without   injury" 110 

§     4,     Injuria  sine  damno — "Injury  without  damage" 110 

§     5.    Damage  sometimes  an  essential  element  of  an  injury 112 


vi  CONTENTS 

§     6.    Place  of  damages  in  the  law 113 

SECTION    2. 

Respective  Functions  of  Court  and  Jury  in  Awarding  Damages. 
§     7.    Damages  estimated  by  jury  under  instructions  of  court...  114 

§     8.     Extent  of  jui-y  's   discretion 114 

§     9.     Excessive  damages   116 

§  10.    Inadequate  damages  118 

CHAPTER  II. 
Non-Compensatory  Damages. 

SECTION    1. 

Nominal  Damages. 

§  11.    General  theory    121 

§  12.     Nominal  damages  recoverable    for    every   breach    of    con- 
tract     122 

§  13.    Nominal  damages  recoverable  for  every  tort 123 

§  14.     Nominal  damages  recoverable  despite  actual  benefit    from 

the  legal  injury 124 

§  15.     Nominal  damages  recovered  where  no  proof  of  substantial 

damage    124 

SECTION  2. 

Exemplary  Damages. 

§  16.     In   general    125 

§  17.     Doctrine  of  exemplary  damages  criticised 127 

§  18.     Exemplary   damages   within   jury's   discretion 128 

§  19.     Exemplary  damages  practically  restricted  to  tort  actions..  129 

§  20.     Against  whom  exemplary  damages  are  recoverable 129 

§  21.     Same:    Against  innocent  principal  for  acts  of  agent 130 

CHAPTER  HI. 

Compensatory   Damages.     Preliminary   Considerations. 

§  22.     In  general 133 

SECTION    1. 
Liquidated  Damages. 

§  23.     Liquidated    damages    defined 134 

§  24.     Distinguished  from  a  penalty 134 

§  25.     Principal    considerations   in   determining  whether  damages 

are   liquidated  :      Stipulation   penal 136 

§  26.     Same:     Stipulation  valid 138 


CONTENTS  vii 

SECTION    2. 

Certainty  in  Proving  Damage. 
§  27.    In  general 139 

§  28.    No  damages  allowed  for  loss  of  profits  incapable  of  proof.  .140 

§  29.     Same :     Further  illustrations 141 

§  30.     Profits  fairly  susceptible  of  proof  may  be  recovered 142 

§  31.     Same :     Further  ilhistration 143 

§  32.    Recovery  of  prospective  damages  depends  upon  certainty 

of  proof 144 

§  33.     Difficulty  of  measuring  damage  by  monetary  standards 145 

§  34.    Meaning  of  rule  that  law  adopts  most  certain  method  of 

measuring  damages    146 

SECTION    3, 

Singleness  of  Recovery. 

§  35.    In  general    148 

§  36.     Application   in   tort :      Trespass 149 

§  37.     Same :     Nuisance    150 

§  38.     Application  in  contract 151 

CHAPTER  IV. 
Liability  for  Consequences  of  Breach  of  Duty. 

SECTION    1. 

In  General. 

§  39.     Defendant  must  be  responsible  for  damage  claimed 152 

§  40.     Defendant's  breach  of  duty  must  be    cause    of    plaintiff's 

damage    152 

§  41.    Damage  must  be  legally  a  proximate  consequence  of  de- 
fendant 's  breach  of  duty 153 

SECTION    2. 

In  Tort. 
§  42.     In   general    153 

§  43.     Liability  extends  to  all  intended  consequences 154 

§  44.  Liability  further  extends  to  all  foreseeable  consequences.  .154 

§  45.     Same :     Illustration   155 

§  46.     Liability  not  restricted  to  foreseeable  consequences 155 

§  47.     Final  limits  of  responsibility  for  tort 156 

§  48.     Same  (continued)   157 

§  49.     Same  (continued)   158 

SECTION    3. 
In  Contract. 

§  50.    In  general  159 

§  51.    Rule  in  Hadley  v.  Baxendale 160 


viii  CONTENTS 

§  52.    What  constitutes  notice  of  special  circumstances 161 

§  53.     Same :     Further  illustration ]  03 

SECTION    4. 
Avoidable  Conseqjiences. 

§  54.     In  general 164 

§  55.     Same :      Illustrations 165 

§  56.     Avoidable  consequences  and  contributory  negligence 166 

8  57.    Limitations   of   doctrine 167 

O 

§  58.     Recovery  of  expenses  incurred  in  avoiding  consequences. .  .167 

CHAPTER  V. 
Measure  of  Damages. 

SECTION    1. 

Forms  of  Damage  Compensated. 

In   general    1^^ 

Pecuniary  damage    1^9 

Non-pecuniary    damage 1~0 

Physical  pain   1^0 

Physical   discomfort  and   inconvenience 170 

Mere   annoyance    1  ^0 

Mental  suffering   171 

SECTION    2. 

Estimation  of  Non-Pecuniary  Damages. 

Discretion  of  jury 171 

Aggravation   and  mitigation 172 

SECTION    3. 
Computation  of  Pecuniary  Damages. 

In  general    172 

Value  as  a  measure  of  damages 173 

Market  price  as  a  test  of  value 174 

Higher    intermediate    value 1  "5 

Deduction  for  benefits  confen-ed:     By  defendant 178 

Same :     By   third  party 177 

Interest   178 

Expenses  of  litigation 179 

SECTION    4. 

Limitations  Imposed  by  Nature  of  Plaintiff's  Interest. 
§  76.    In  general 180 


§ 

59. 

§ 

60. 

§ 

61. 

§ 

62. 

§ 

63. 

§ 

64. 

§ 

65. 

§ 

66. 

§ 

67. 

§ 

68. 

5  69. 

§ 

70. 

§ 

71. 

§ 

72. 

§ 

73. 

§ 

74. 

§ 

75. 

CONTENTS  ix 

§  77.     Interests  in  realty 181 

§  78.     Interests  in  personalty 182 

CHAPTER  VI. 

Damages  in  Certain  Important  Actions. 
§  79.     Special  rules  applicable  in  certain  actions 184 

SECTION    1. 
Actions  Belating  to  Sales  of  Goods. 

§  SO.    Distinction  between  sales  and  contracts  to  sell 184 

§  81.     Completed  sale :     Breach  by  vendee 185 

§  82.     Same :     Breach  of  vendor's  warranty 185 

§  83.     Contract  to  sell:     Breach  by  vendee 186 

§  84.     Same :     Breach  by  vendor 187 

SECTION    2. 

Contracts  Relating  to  Realty. 

§  85.  Contracts  of  sale :     Breach  by  vendee 188 

§  86.  Same :     Breach  by  vendor 188 

§  87.  Breach  of  covenant  of  seisin 190 

§  88.  Breach  of  covenants  of  warranty  and  quiet  enjoyment 191 

§  89.  Breach  of  covenant  against  encumbrances 192 

§  90.  Effect  of  recital  of  consideration  in  deed 193 

SECTION    3. 
Certain  Miscellaneous  Contracts. 

§  91.     Contract  to  loan  money 194 

§  92.     Contract  to  pay  another's  debt 195 

§  93.     Contracts  of  indemnity  and  insurance 195 

§  94.     Contract  to  marry 197 

SECTION    4. 

Tortious  Severance  from  the  Realty. 

§  95.     In  general    198 

§  96.     When  action  is  for  trespass  on  land 198 

§  97.     When  action  is  for  trespass  to  personal  property 199 

§  98.     When  action  is  for  conversion  of  personal  property 200 

§  99.     Prevailing  tendency  to  disregard  f onus 201 

SECTION    5. 
Death   by    Wrongful  Act. 

§100.     In  general  202 

§101.     Basis  of  recovery:     Pain  and  suffering  of  deceased 203 

§102.     Same :    Grief  and  loss  of  society 204 

§103.     Same:     Evidence  of  pecuniary  damage 204 

S104.     Same :     Excessive   verdicts 205 


X  CONTENTS 

BANKRUPTCY. 

§    1.    Outline    207 

CHAPTER  I. 

History  of  Bankruptcy  Legislation. 

§     2.     Earliest  traces  of  elements  of  bankruptcy  law 209 

§     3.    Increasing    complexity    of    business    demands    bankruptcy 

legislation    209 

§     4.     Earliest   English  bankruptcy   law 210 

§     5.    Progress  in  bankruptcy  legislation 211 

§     6.     Bankruptcy  legislation  in  the  United  States 211 

§     7.     State  versus  Federal  bankruptcy  laws 212 

CHAPTER  II. 
Bankrupts  and  Petitioning  Creditors. 

SECTION  1. 

Who  May  Be  Bankrupt? 

§     8.     Voluntary  and  involuntary  bankrupts 214 

§     9.     Who  may  be  voluntary  bankrupts 215 

§  10.    Who  may  be  involuntary  bankrupts 216 

§  11,     Inclusion  of  corporations  strictly  construed 217 

§  12.     Same:     Examples  217 

§  13.     State  bankruptcy  laws  operative  where  Federal  law  does 

not  apply    219 

§  14.     Business  in  which  corporation  is  engaged  and  not  charter 

powers  control  220 

SECTION    2. 
Petitioning  Creditors. 

§  15.     Explanation  of  term 220 

§  16.    Who  may  be  petitioning  creditors 220 

§  17.     Number  of  petitioning  creditors  required 221 

§  18.    Limitations  upon  rights  of  creditors  to  join  in  petition.  .222 

CHAPTER  III. 

Acts  of  Bankruptcy. 

§  19.    Act  of  bankruptcy  necessary  for  involuntary  proceedings.  .224 

§  20.     Act  of  bankruptcy  not  essential  in  voluntary  proceedings.  .224 

§  21.     Fraudulent    conveyances:     Statute   of   Elizabeth 225 

§  22.     Same :      In    bankruptcy    act 226 


CONTENTS  7a 

Retention  of  possession  by  seller 227 

Conveyances  in  consideration  of  support  of  grantor 227 

Inadequacy  of  price 22S 

Conveyance  upon  secret  trust 229 

Conveyances    both    to    pay    past    debt    and    to    defraud 

creditors   230 

Preferment  of  creditors 230 

Exchanging  non-exempt  for   exempt   property 231 

Voluntary  conveyances   232 

Same :      Conflicting   views 232 

Proof  of  solvency 233 

Future  creditors  may  attack  fraudulent  conveyances 235 

How  intent  to  defraud  future  creditors  shown 236 

General  assignments  for  benefit  of  creditors 236 

Assignments  with  preferences 237 

Preferences    ^^° 

How  creditors  may  force    debtor    to    commit    an    act    of 

bankruptcy    ""^^ 

Statutory  admissions  by  debtor 239 

Trial  and  adjudication :  Voluntary  cases 240 

Same :     Involuntary  cases 240 

Same :    Issues  presented  for  determination 241 

CHAPTER  IV. 
Trustee  and  Property. 

SECTION  1. 

The  Trustee. 

§  43.    Provisional    officer:      Receiver 242 

§  44.     Election  and  qualification  of  trustee 243 

§  45.    Duties  of  trustee:    To  take  possession  of  property 244 

§  46.     Same :     To  set  apart  bankrupt 's  exemptions 244 

§  47.     Same :    To  bring  suit  to  recover  property  and  assets 245 

§  48.     Same:    To  reduce  all  property  to  money  and  pay  dividends. 246 
8  49.     Same :    To  keep  accounts,  make  reports,  and  give  informa- 
tion     246 

§  50.     Compensation   of   trustee 247 

SECTION    2. 

Title  and  Property  Passing  to  Trustee  from  Bankrupt. 

§  51.     In   general    '^'* ' 

8  52.    Time  and  manner  of  vesting  title 248 

^  Vol.  X— 2 


§ 

23. 

§ 

24. 

§ 

25. 

§ 

26. 

§ 

27. 

§ 

28. 

§ 

29. 

§ 

30. 

§ 

31. 

§ 

32. 

§ 

33. 

§ 

34. 

§ 

35. 

§ 

36. 

§ 

37. 

§ 

38. 

§ 

39. 

§ 

40. 

§ 

41. 

§ 

42. 

Xll 


CONTENTS 


§  53.  Documents    250 

§  54.  Patents,  patent-rights,  copyrights,  and  trade-marks 250 

§  55.  Powers    250 

§  56.  Fraudulent  conveyances   251 

§  57.  Transferable   and   leviable  property 252 

§  58.  Same :      Illustrations 253 

§  59.  Choses  in  action   254 

§  60.  Life  insurance  policies 255 

§  61.  Rights    of    action 256 

§  62.  Source  of  trustee 's   title 258 

§  63.  Property  passes  to  trustee  just  as  bankrupt  held  it 259 

§  64.  Property   not   passing   to    trustee:      Exemptions    and    ex- 
pectancies     260 

§  65.  Same :      Trust   property 261 

§  66.  Same :     After-acquired  property 261 

SECTION    3, 

Rights  of  Creditors  Passing  to  Trustee. 

§  67.    In    general 262 

§  68.     Conveyances  in  fraud  of  creditors 262 

§  69.     Purchasers  of  property  conveyed  in  fraud  of  creditors 264 

§  70,     Conveyances  and  liens    not    fraudulent    but    void    as    to 

creditors    '  •  •  •  ^^^ 

§  71.     Same :     Illustrations    265 

§  72.     Same :     Effect  of  act 266 

§  73.     York  Manufacturing  Co.  v.  Cassell 2t56 

§  74.     Same :    Results  of  this  decision 267 

SECTION    4. 
Rights  of  Trustee  Created  hy  Law. 

§  75.     Preferential  transfers  and  legal  liens 268 

§  76.    Fundamental  features  of  preferences 269 

§  77.     Insolvency    271 

§  78.     Property  included  and  ascertainment  of  value 272 

§  79.     Debtor's  intent  to  prefer 273 

§  80.     Liens  resulting  from  legal  proceedings 274 

§  81.     Same :     Additional  illustrations 275 

§  82.     Liens  not  resulting  from  legal  proceedings 275 

CHAPTER  V. 
Provable  Claims. 

8  83.     Historical   basis    of   provability 277 

277 
§  84.    Importance  of  subject ^" 


CONTENTS  xiii 

§  85,  When  claims  must  exist  to  be  provable 278 

§  86.  Claims  based  on  written  documents. 278 

§  87.  Claims  based  on  express  or  implied  contracts 279 

§  88.  Express  verbal  agreements 280 

§  89.  Undertakings  implied  from  acts  of  parties 280 

§  90.  Undertakings    implied    by   law 2*80 

§  91.  Unliquidated  claims   281 

§  92.  Same :     Illustrations    282 

§  93.  Unprovable  claims    283 

§  94.  Certain  judgments   unprovable 283 

§  95.  Torts  not  resulting  in  unjust  enrichment 284 

§  96.  Contingent  claims   284 

§  97.  Same:     Secondary  liabilities  upon  commercial  paper 285 

§  98.  Claims  to  which  bankrupt  has  defence 286 

§  99,  Priority  of  claims 287 

CHAPTER  VI. 
Discharge. 

SECTION  1. 

In  General. 

§100.    Term  explained  288 

§101.     Questions  involved   288 

§102.    Historical  statement    288 

§103.     Liberality  of  present  Act  toward  discharges 289 

§104.     Who  may  apply  for  a  discharge  and  when 290 

§105.    Nature  of  proceeding 291 

SECTION    2. 

Belits  Affected. 

§106.     Debts  that  are  discharged 291 

§107.     Debts  not  discharged 292 

§108.     Same :     Illustrations    292 

§109.     Provable  claims  discharged  whether  proved  or  not 293 

§110.    Revival  of  discharged  debt 294 

SECTION    3. 
Opposition  to  Discharge. 

§111.    Who  may  oppose  a  discharge 294 

§112.     Grounds   of  opposition 295 

§113.     Commission  of  offense  punishable  by  Act 2'97 

§114.     Concealment   of   assets 297 

§115.    Making  false  oaths 297 


xiv  CONTENTS 

§116.     Destroying,  concealing,  or  failing  to  keep  books  of  account. 298 
§117.     Fraudulent   transfers  made  within  four  months   of  bank- 
ruptcy     298 

§118.     Procuring  property  on  credit  upon  a  false  written   state- 
ment     299 

§119.     Previous  voluntary  discharge  within  six  years 300 

§120.     Refusal  to  obey  orders  or  ansAver  questions  of  court 300 

NOTE. 

$121.     Advantages  to  creditors  of  national  law  over  diverse  state 

laws    20l 

JUDGMENTS. 
§     1.     Outline    303 

SECTION  1. 

Nature,  Essentials,  and  Kinds  of  Judgments. 

§     2,     Judgment  defined    303 

§     3.     Same :     Illustrations    305 

§     4.     What  is  a  court 306 

§     5.     Elements  of  jurisdiction:     Compliance  with  statutory  re- 
quirements     308 

§     6.     Same :     Submission  of  question  to  coui't 309 

§     7.     Same :     Judgments  binding  property 310 

§     8.     Same:     Personal  judgments 311 

§     9.     Same :     Opportunity  to  be  heard 312 

§  10.     Summary  of  essentials  of  judgments 313 

§  11.     Kinds   of  judgments 314 

SECTION    2. 

Record  of  Judgment. 

§  12.     Definition    315 

§  13.     Former  English  practice 315 

§  14.     Same:    Example  315 

§  15.     American  practice  :     Formal  record  of  judgment 317 

§  16.     Same :     Journal   entries   and   files 318 

§  17.     Same:    Example 318 

§  18.     Same :    Justice  court  records 320 

§  19.     Entering  and  amending  record 320 

8  20.     Questions  regarding  essentials  of  record 321 

§  21.     How  far  presumptions  aid  the  record -^-J- 

§  22.    What  must   always  appear 31-^ 


CONTENTS  XV 

§  23.    Conclusiveness  of  record :     Early  doctrine 323 

§  24.     Same :     Modern   limitations 323 

§  25.     Doctrine  does  not  apply  to  inferior  courts 324 

§  26.    Records  of  superior  domestic  courts  conclusive  on  collateral 

attack    325 

SECTION    3. 

Vacating,  Amending,  and  Modifying  Judgments. 

§  27.    Record  and  judgment  distinguished 325 

§  28.    What  courts  may  vacate,  modify,  and  amend  judgments. .  .326 

§  29.     Such  action  during  the  term 327 

§  30.     Common  law  remedies  after  the  term 327 

§  31.    Modern  practice  as  to  relief  after  the  term 328 

^  SECTION    4. 

Effect  of  Judgments. 

§  32,    In  general 328 

§  33.     Why  judgments  estop 329 

§  34.     Essentials  of  estoppel  by  judgment 330 

§  35.    What  matters  are  res  judicata 331 

§  36.     Causes  of  action  and  defences  which  are  barred 332 

§  37.     Application  of  doctrine  of  merger 333 

§  38.     Only  cause  of  action  sued  on  and  defences  to  it  are  ex- 
tinguished     334 

§  39.    What  matters   aside  from  claims,   counterclaims,  and  de- 
fences are  concluded 336 

§  40.    Parties  bound  by  judgments:     Judgments  in  rem  and  in 

personam    338 

§  41.    In  what  suits  judgments  bind  parties  and  privies 339 

§  42.    Who    are    parties 340 

§  43.     Who    are    privies 340 

§  44.     Judgment    essential 341 

§  45.     Effect  of  special  jurisdiction  of  court 342 

§  46.     Judgment  must  be  final,  on  merits,  and  subsisting 344 

§  47.     Judgment  must  be  in  personam 345 

§  48.     Satisfaction  of  judgment  and  subsequent  rights 346 

ATTACHMENTS,  GARNISHMENTS,  AND  EXECUTIONS. 

CHAPTER  I. 

Nature  of  the  Processes. 

§    1.    What  judgments  need  no  execution -347 

§     2.     Enforcement    by    coercion ,.348 

§     3.     Execution  by  officer  under  process  of  court 348 


ivi  CONTENTS 

§    4.  Execution    349 

§     5.  Replevin    349 

§     6.  Attachment    350 

§     7.  Garnishment     350 

§     8.  Fieri  facias  (fi.  fa.)   352 

§     9.  Capias  ad  satisfaciendum   (ca.  sa.) 352 

§  10.  Levari  facias 352 

§  11.  Extendi  facias  353 

§12.  Elegit    353 

§  13.  Habere  facias  seisinam 353 

§  14.  Retomo  habendo    354 

CHAPTER  II. 

Issuance  of  Process. 

§  15.    Plan  of  treatment  355 

§  16.     When  process  is  issued 356 

SECTION    1. 
Demands  on  Which  Process  May  Issue. 

§  17.    Executions    356 

§  18.     Attachments   and  garnishments  :     Limitations 356 

§  19.     Form  of  action 357 

§  20.     Character  of  obligation 357 

§  21.     Grounds   or  exigencies  of  issue 353 

§  22*.    Rules  applicable  to  all  grounds  for  attachment 359 

SECTION    2. 

At  What  Stage  of  Case  Process  May  he  Issued. 

§  23.  Garnishments     361 

§  24.  Attachments    361 

§  25.  Executions:   Before  recording  or  while  stayed 361 

§  26.  Same:     After  judgment  becomes  dormant 382 

§  27.  Same :     After  judgment    outlawed 303 

§  28.  Same :    After  judgment  satisfied 363 

§  29.  Same :    After  death  of  a  party 363 

SECTION    3. 

Effect  of  Use  of  One  Process  on  Eight  to  Another. 

§  30.     Whether  a  levy  is  satisfaction    364 

§  31.     Second  execution  on  attachment  judgment 305 

SECTION    4. 

Who  May  Demand  and  Control  Process. 

§  32.    Every  person  owning  a  claim 366 

§  33.    Only  persons  interested  in  claim 367 


CONTENTS  xvii 

§  34.     Writs  issued  on  others'  orders  are  valid 367 

§  35.     Remedies  of  persons  injured 368 

§  36.    Form  of  demand  and  proof  of  authority 368 

SECTION    5. 
Against  Whom  Process  May  Issue. 

§  37.    Parties    only    368 

§  38.    All  defendants    369 

§  39.    Any  person  may  garnishee 369 

§  40.    Limitations  upon  right  to  process 370 

SECTION    6. 
What  Courts  and  Officers  May  Issue  Process. 

§  41.    Every  court  may  enforce  its  judgments 371 

§  42.     No  court  can  issue  process  on  judgTnents  of  other  courts.  .371 

§  43.    When  process  from  other  courts  is  authorized 372 

§  44.     Only  by  the  proper  officer 373 

SECTION    7. 

Form  and  Essentials  of  Papers. 
§  45.    Attachment  and  garnishment  affidavits :  Wanting  or  defect- 
ive     374 

§  46.     What  is  a  sufficient  affidavit:    By  and  before  whom  sworn 

to    374 

§  47.    When  sworn  to  374 

§  48.     Substance   375 

§  49.     Accuracy  and  certainty   375 

§50.     Form    378 

§  51.     Attachment  bonds    376 

§  52.     Form  and  essentials  of  processes:    Parts  of  process 377 

§  53.    What  formal  parts  are  essential 378 

§  54.     Same    (continued)    379 

§  55.     Same   (continued)    379 

§  56.     Body  of  process :     As  a  summons 380 

§  57.     Same:     As  an  attachment.     Naming  the  parties 381 

§  58.     Same :     What  ?    How  much  1    When  return   381 

CHAPTER  in. 

General  Incidents  and  Requisites  of  Executing  Process. 
§  59.    Plan  of  treatment   384 

SECTION    1. 

Alteration  and  Control  of  Process. 

§  60.    Power  of  legislature  to  change  remedy 385 

§  61.    Judicial  control  of  process   385 


xviii  CONTENTS 

SECTIOK    2. 

Rights  and  Ldahilities  of  Officer. 

§  62.  Right  to  protection  in  general   386 

§  63.  Shield   of   the   process 386 

§  64.  Recourse  to  party  whose  writ  is  served 388 

§  65.  OflBcer's  possession  is  the  court's 389 

§  66.  Property  rights  of  officer 389 

§  67.  Liability  of  officer  in  general 390 

§  68.  Liability  to  plaintiff  in  process :     Instances 391 

§  69.  Same :     Measure  of  liability.     Defences 393 

§  70.  Liability  to  defendants  in  process 393 

§  71.  Liability  to  strangers  to  process 395 

SECTION    3. 
Place,  Time,  and  Agents  for  Executing  Process. 

§  72.    Where  process   may  be   executed 395 

§  73.    How  early   396 

§  74.    How  late    396 

§  75.     Who  may  execute  process 397 

CHAPTER  IV. 
Property  Taken,  Levy,  and  Service. 

§  76.     Comparative   scope  of  processes 399 

SECTION    1. 
Matters  Peculiar   to    Garnishment. 

§  77.     Two   grounds    of   liability 399 

§  78.     From  what  time  reckoned 400 

§  79.     Garnishee    as    bailee    400 

§  80.     Garnishee   as  debtor    401 

SECTION    2. 

Property  Subject  to  Process. 

§  81.     General   rule    401 

§  82.     Judgment    or    process    limited 402 

§  83.     Things   not  property 403 

§  84.    Defendant's  estate  insufficient 404 

§  85.     Things   exempt :      Grounds   enumerated 406 

§  86.     Statutory   exemptions    406 

§  87.    Equitable  exemptions 406 

§  88.     Peace  and   security  exemptions 407 

§  89.     Public   service  exemptions 408 

§  90.     Jurisdictional   conflict   exemptions 408 


§ 

91. 

§ 

92. 

§ 

93. 

§ 

94. 

§ 

95. 

§ 

96. 

§ 

97. 

§ 

98. 

CONTENTS  xix 

SECTION    3. 

Levy  and  Service. 

In   general    ^^^ 

Levy  on  land ^-^1 

Levy   on   chattels :    Sufficiency 411 

Same :     When  no   levy  necessary 412 

Same:      Order    of    seizure,    inventory,    appraisement,  in- 
dorsement on  process,  etc 413 

Effect  of  fraud  or  unlawful  act 413 

Attachment  and  garnishment  smnmonses 413 

Notice  of  attachment,  garnishment,  or  execution 414 

CHAPTER  V. 
Lien  and  Foreclosure  (Sale). 

SECTION    1. 

When  Lien  Begins. 

§  99.  At  common    law ^^^ 

§100.  Under  statute  of  frauds   416 

§101.  Modem    American    rule 417 

§102.  Attachments   and   garnishments 417 

SECTION    2. 

Nature  of  Lien. 

§103.    Against    officer    418 

§104.     In   property   before   levy 418 

§105.    In   property   after   levy 420 

SECTION    3. 
Loss  of  Lien  After  Levy. 

§106.     By  order  of  court 422f 

§107.    Who  may  complain   422 

§108.     Procedure    423 

§109.     Grounds  for  quashing  lien 423 

§110.     Same :     Available  to  defendants 423 

§111.     Same :    Available  to  claimants  and  garnishees 424 

§112.     Abandonment  of  lien :    By  election  of  remedies 425 

§113.     Same :      By    dropping   proceedings 425 

§114.     Same :     By  surrendering  possession 426 

§115.    Laches  and  abuse  of  process 426 

§116.    Failure   of  action  or  judgment 427 

§117.     Substitute  bond    427 


XX  CONTENTS 

SECTION    4, 

Foreclosure  of  Lien. 

§118.     In  attachment  and  garnishment 427 

§119.     Proceedings  in  garnishment  from  summons  to  judgment.  .428 

§120.     Conduct  of  execution  sales 429 

§121.     Effect  of  defects  430 

§122.     Officer's  return   430 

CHAPTER  VI. 

Satisfaction  and  Suhsegtient  Righta. 

SECTION    1. 

What  Constitutes  a  Satisfaction. 

§123.    Outline    432 

§124.     By  use  of  process 432 

§125.    By  setting  off  against  other  judgments 433 

§126.     By  recovering  another  judgment 433 

§127.    By  lapse  of  time 433 

§128.    By  payment:     To  whom 434 

§129.    Medium  and  amount 435 

§130.     Whose  payment  satisfies.     Assignment  and  subrogation.  .  .435 

SECTION    2. 
Rights  After  Satisfaction. 

§131.     Proof  and  entry  of  satisfaction 436 

§132f.    Appeal    after    satisfaction 436 

§133.     Restitution    on    reversal 437 

§134.     Protection  of  third  parties  when  judgment  is  reversed. ..  .437 
§135.     Vacating   false    satisfaction 438 

Appendix  A.  International  Law   440 

Appendix  B.  Damages    443 

Appendix  C.  Bankruptcy 448 

Appendix  D.  Judgments 451 

Appendix  E.  Attachments,    Garnishments,    and   Executions 453 


INTERNATIONAL  LAW 


BY 


[A.ENOLD  BENNETT  HALL, 

A.  B.    (Franklin  College) 
J.  D.    (University  of  Chicago) 

Assistant  Professor  of  Political  Science,  University  of  Wisconsin. 


CHAPTER  L 
GENERAL  CONCEPTIONS. 

§  1.  Definition  and  scope  of  subject.  International 
Law  is  that  body  of  rules  which  civilized  nations  have  ac- 
cepted as  being  binding  upon  them  in  their  relations  with 
one  another.  The  world-wide  development  of  industry 
and  commerce  and  the  resulting  growth  of  political  and 
social  interests  between  nations  have  so  tremendously  en- 
larged the  scope  of  international  activities,  that  a  well- 
defined  system  of  rules  governing  their  conduct  has  be- 
come necessary  to  international  peace  and  good  faith. 
The  rules  of  international  law  promote  the  interests  of 
peace  by  guaranteeing  to  states  the  rights  of  independ- 
ence and  inviolable  sovereignty ;  in  demanding  strict  neu- 


2  INTERNATIONAL  LAW 

trality  from  nations  not  parties  to  a  conflict,  and  by  grant- 
ing immunity  to  diplomatic  agents  and  surrounding  them 
by  every  safeguard,  they  have  fostered  relations  of  mu- 
tual faith  and  confidence,  paving  the  way  for  interna- 
tional arbitration ;  they  have  mitigated  the  horrors  of  war 
by  forbidding  inhuman  practices  and  making  special  pro- 
visions for  the  care  of  sick  and  wounded ;  they  have  en- 
couraged the  growth  of  international  commerce  and  in- 
dustry by  securing  the  protection  of  the  life  and  property 
of  the  alien  and  by  freeing  it  as  far  as  possible  from 
the  useless  destruction  of  war.  The  laws  of  nations  are 
as  necessary  to  the  peace  and  prosperity  of  the  family  of 
nations  as  domestic  laws  are  necessary  to  the  life  and 
security  of  the  individual. 

In  defining  international  law  many  writers  have  di- 
vided it  into  two  branches,  public  international  law,  and 
private  international  law.  The  former  treats  of  inter- 
national law  as  defined  above,  as  dealing  with  the  duties 
and  obligations  of  one  nation  to  another;  while  the  lat- 
ter "treats  of  rules  and  principles  which  are  observed 
in  cases  of  conflict  of  jurisdiction  in  regard  to  private 
rights"  (1).  In  the  latter  the  question  in  controversy 
|is  between  individuals  and  not  states,  and  a  better  term 
for  that  branch  of  law  is  that  given  by  Judge  Story, 
''Conflict  of  Laws"  (See  Volume  IX  of  this  work).  In 
this  discussion  the  term  International  Law  will  mean 
only  public  international  law. 

§  2.  Nature  and  sources  of  international  law.  Many 
writers  in  defining  international  law  define  it  as  having 


(1)     Wilson  and  Tucker,  International  Law,  p.  4. 


GENEEAL  PEINCIPLES  3 

its  source  in  reason  or  justice,  implying  that  what  is 
right  or  just  between  nations  is  the  law  of  nations.  Here 
there  is  evident  confusion.  The  rules  which  civilized  na- 
tions accept  are  the  rules  of  international  law,  regard- 
less of  their  moral  or  rational  quality.  In  determining 
whether  a  given  rule  is  a  part  of  international  law,  the 
vital  question  is,  have  the  nations  so  accepted  iti  As 
new  problems  arise  demanding  new  legal  remedies,  that 
rule  which  is  most  rational  and  just  is  the  one  most  likely, 
perhaps,  to  be  accepted,  but  it  will  be  its  acceptance  by 
the  nations  and  not  the  justice  of  the  rule  that  gives  it 
the  binding  character  of  law.  This  is  clearly  emphasized 
in  the  case  of  the  Scotia,  where  the  question  was  directly 
raised  as  to  what  determined  the  law  of  the  sea.  Mr. 
Justice  Strong,  speaking  for  the  court,  said:  *'Like  all 
the  laws  of  nations,  it  rests  upon  the  common  consent 
of  civilized  communities.  It  is  of  force,  not  because  it  was 
prescribed  by  any  superior  power,  but  because  it  has 
been  generally  accepted  as  a  rule  of  conduct.  Whatever 
may  have  been  its  origin  ...  it  has  become  the  law 
of  the  sea  only  by  concurrent  sanction  of  those  nations 
who  may  be  said  to  constitute  the  commercial  world"  (2). 
It  follows  from  the  above,  then,  that  international  law 
derives  its  real  authority  from  the  general  consent  and  ac- 
ceptance of  civilized  states.  Treaties,  court  decisions, 
diplomatic  correspondence,  decisions  of  boards  of  arbi- 
tration, and  state  papers  are  the  primary  sources  from 
which  the  general  usages  and  customs  of  these  nations 
may  be  ascertained,  and  they  will  show  what  rules  of  law 


(2)     14  Wallace,  170. 


4  INTEENATIONAL  LAW 

have  been  expressly  or  impliedly  accepted.  The  text- 
writers,  who  have  collected  and  collaborated  all  of  this 
material  and  deduced  from  it  certain  rules  of  accepted 
conduct,  furnish  the  secondary  sources  of  international 
law.  But  these  writers  do  not  make  the  law,  and  their 
rules  may  or  may  not  be  the  law,  accordingly  as  their  de- 
ductions have  been  erroneous  or  correct. 

§  3.    History  of  international  law.    While  the  history 
of  international  law  is  generally  traced  back  to  the  days 
of  Greece  and  Rome,  the  history  of  modern  international 
law,  as  we  understand  it  to-day,  begins  with  the  peace  of 
AVestphalia  in  1648.    It  was  then  seen  that  the  *'old  doc- 
trines of  world  empire,  whether  of  pope  or  emperor, 
could  no  longer  be  sustained."     The  idea  of  sovereign 
states,  with  interstate  relations  and  the  necessity  of  con- 
formity to  fixed  rules,  became  firmly  established.    Inter- 
national law  began  to  be  studied  with  a  new  zeal.   Ques- 
tions of  the  balance  of  power,  of  neutral  trade,  and  of 
contraband  of  war  were  widely  discussed,  and  numerous 
commercial  treaties  entered  into.    The  second  epoch  of 
this  modern  period  begins  with  the  treaty  of  Utrecht  in 
1713.    The  treaty  itself  recognized  many  of  the  principles 
which  had  gained  acceptance  since  1648.    The  increasing 
influences  of  the  new  world  in  European  politics  became 
apparent.    The  American  Revolution  as  well  as  that  of 
the  French  showed  clearly  the  need  of  more  stringent 
rules   of  neutrality.     Boundary  disputes  were   settled 
along  lines  laid  down  in  the  Roman  law.    Diplomatic  rela- 
tions received  larger  attention  than  ever  before,  result- 
ing in  the  determination  of  the  precedents  and  dignities 


GENERAL  PEINCIPLES  5 

of  diplomatic  agents.  The  treaty  of  Vienna  in  1815  marked 
the  beginning  of  the  present  epoch.  Here  the  discussions 
differ  from  the  earlier  ones  in  that  they  are  now  based 
upon  what  the  law  is  rather  than  what  it  ought  to  be. 
The  present  problems  are  being  worked  out  largely  along 
lines  of  commercial  and  industrial  development,  towards 
greater  comity,  and,  it  is  hoped,  towards  the  ultimate 
achievement  of  international  peace. 

§4.    International  law  part  of  mimicipal  law.     The 

proposition  that  international  law  is  a  part  of  the  domes- 
tic law  of  the  United  States  was  clearly  upheld  in  the 
case  of  the  Paquette  Habana,  where  the  question  was 
raised,  whether  the  law  of  nations  protected  small  fish- 
ing smacks  of  the  enemy  from  capture,  and,  if  so,  was  the 
law  of  nations  a  part  of  the  municipal  law  of  the  United 
States.  In  giving  its  decision  the  court  said:  ''Interna- 
tional law  is  a  part  of  our  law,  and  must  be  ascertained 
and  administered  by  the  courts  of  justice  of  appropriate 
jurisdiction  as  often  as  questions  of  right  depending  upon 
it  are  duly  presented  for  their  determination.  For  this 
purpose,  where  there  is  no  treaty,  and  no  controlling 
executive  or  legislative  acts  or  judicial  decision,  resort 
must  be  had  to  the  customs  and  usages  of  civilized  na- 
tions" (3).  In  the  case  of  the  Charming  Betsy  (4),  Mr. 
Chief  Justice  Marshall  observed:  ''An  act  of  Congress 
ought  never  to  be  construed  to  violate  the  law  of  nations, 
if  any  other  possible  construction  remains,  and  conse- 
quently can  never  be  construed  to  violate  neutral  rights, 


(3)  175  U.  S.  677. 

(4)  2  Cranch,  64. 


6  INTEENATIONAL  LAW 

or  to  affect  neutral  commerce  further  than  is  warranted 
by  the  law  of  nations  as  understood  in  this  country." 
"Whether  or  not  the  law  of  nations  is  a  part  of  domestic 
law  is  itself  purely  a  question  of  domestic  law. 

§  5.  Sovereign  states  are  the  persons  in  international 
law.  Private  law  deals  directly  with  the  rights  and  obli- 
gations between  individuals.  International  law  deals 
with  the  rights  and  obligations  between  sovereign  states. 
But  what  is  a  sovereign  state?  Since  it  is  a  person  in 
international  law,  it  must  possess  such  attributes  as  will 
enable  it  to  perform  those  obligations  which  a  person  in 
international  law  is  legally  bound  to  perform.  To  do 
this  it  must  be  supreme  within  its  territory,  in  order  that 
it  may  guarantee  to  other  states  the  proper  protection 
of  aliens  and  their  property;  it  must  be  independent  in  its 
external  control,  in  order  that  it  may  be  untrammeled 
in  the  performance  of  its  legal  duties  and  treaty  obli- 
gations ;  it  must  have  sufficient  evidences  of  permanency 
to  guaranty  a  reasonably  continuous  existence;  and 
enough  civilization  to  indicate  an  appreciation  of  the  bind- 
ing character  of  law  (5).  This  debars  the  Indian  tribes 
as  being  externally  subject  to  another  power,  and  ex- 
cludes semi-barbarous  peoples  as  being  unappreciative 
of  the  sanctity  of  law  and  incapable  of  affording  ade- 
quate protection  to  the  property  and  citizens  of  foreign 
states.  The  necessity  of  external  independence  was  set 
forth  in  the  case  of  the  Checharkieh  (6).  In  this  case 
a  boat  belonging  to  the  khedive  of  Egypt,  being  sued  for 


(5)  Hall,  International  Law,  p.  20. 

(6)  L.  R.  4  Adm.  and  Ecc.  Cts.  59. 


GENEKAL  PRINCIPLES  7 

damages  done  to  another  ship,  set  up  the  defense  that  the 
boat  belonged  to  the  khedive  of  Egypt,  and  was  therefore 
entitled  to  the  immunity  of  a  public  ship.  The  court, 
after  reviewing  the  facts  that  Egypt  was  a  part  of  the 
Ottoman  Empire,  that  this  empire  levied  the  taxes,  con- 
trolled the  armies,  and  made  the  treaties  for  Egypt,  held 
that:  ''All  these  facts,  according  to  the  unanimous  opi- 
nion of  accredited  writers,  are  inconsistent  and  incom- 
patible with  those  conditions  of  sovereignty  which  are 
necessary  to  entitle  a  country  to  be  ranked  as  one  among 
the  great  community  of  states",  and  therefore  the  ships 
of  Egypt  are  not  to  be  accorded  the  immunity  which  at- 
taches to  the  public  ships  of  sovereign  states. 

§6.    Distinction  between  a  government  and  a  state. 

Careful  distinction  must  be  made  between  the  govern- 
ment and  the  state,  for  it  is  the  state  and  not  the  govern- 
ment, that  is  a  person  in  international  law.  The  govern- 
ment is  only  the  agent  of  the  state.  Consequently  any 
changes  in  the  government  which  do  not  interfere  with  its 
ability  to  perform  its  international  obligations,  do  not  ef- 
fect a  change  in  the  identity  of  the  state.  If  this  were  not 
so,  then  those  states  having  treaties  with  a  state  about 
to  change  its  government  would  interfere  to  prevent  the 
loss  of  their  treaty  rights.  Such  a  theory  would  obviously 
lead  to  the  constant  intermeddling  in  the  internal  politics 
of  nations.  States  may  change  their  form  of  government, 
or  acquire  territory,  or  cede  portions  of  their  domain, 
without  losing  their  identity,  and,  therefore,  without  re- 
linquishing their  claims  or  escaping  their  obligations 
under  existing  treaties  and  laws.    However,  where  the 


8  INTERNATIONAL  LAW 

state  is  broken  up  and  divided  among  other  states,  as 
the  absorption  of  Poland  by  Russia,  Austria,  and  Prussia, 
in  1795,  or  where  a  state  is  annexed  to  another  by  con- 
quest of  war,  as  the  conquest  of  the  Orange  Free  State 
by  Great  Britain  in  1901,  or  where  two  states  combine 
to  form  a  third  state,  the  identity  of  the  absorbed  states 
is  lost. 

§  7.  Part-sovereign  states.  Part-sovereign  states,  as 
known  to  international  law,  are  states  where  the  external 
sovereignty  is  partly  exercised  by  other  states,  or  partly 
suspended  altogether.  The  division  of  internal  sover- 
eignty is  only  remotely  and  indirectly  connected  with  in- 
ternational law  and  will  not  be  treated  here.  That  is 
properly  a  matter  of  constitutional  law.  The  German 
Confederation  from  1815  to  1866,  which  left  to  the  local 
states  certain  powers  of  external  sovereignty  and  which 
gave  other  powers  to  the  confederation,  is  an  example 
of  a  part-sovereign  state.  A  neutralized  state,  where 
certain  of  its  external  i^owers  have  been  taken  away  for 
the  purpose  of  neutralization,  as  where  Switzerland  was 
deprived  of  the  right  to  wage  offensive  wars,  and 
the  establishment  of  protectorates  and  suzerainties  are 
other  examples.  A  state  under  the  protectorate  of  an- 
other state  possesses  all  the  rights  of  external  sover- 
eignty, except  those  which  have  been  specifically  resigned, 
while  states  under  suzerainty  possess  only  such  powers 
of  external  sovereignty  as  a  suzerain  power  specifically 
grants.  The  South  African  Republic,  under  the  protec- 
torate of  England  by  the  agreement  of  1884,  and  Bul- 
garia, under  the  suzerainty  of  the  sultan  of  Turkey  as 


GENERAL  PRINCIPLES  9 

provided  by  the  first  article  of  tlie  treaty  of  Berlin  are 
typical  examples. 

§  8.  Recognition  of  new  states.  Theoretically,  a  na^ 
tion  has  the  right  to  enter  the  family  of  nations  as  soon 
as  it  possesses  the  necessary  attributes  of  a  state.  But  of 
this  the  states  are  the  judge,  and  their  recognition  of  the 
new  state  marks  its  advent  within  the  pale  of  interna- 
tional law.  This  recognition  may  be  by  individual  states 
from  time  to  time  as  each  sees  fit,  or  it  may  be  by  the  col- 
lective action  of  several,  as  the  reception  of  Turkey  into 
the  family  of  nations  by  the  treaty  of  Paris  of  1856.  The 
recognition  may  be  formal  as  by  public  proclamation, 
treaty,  the  sending  or  reception  of  ambassadors,  the  sal- 
ute of  the  flag,  etc.,  or  it  may  be  merely  implied  from  any 
state  act  indicating  the  recognition  of  international  rights 
and  obligations.  The  states  so  recognized  may  be  either 
states  heretofore  considered  as  barbarous  or  uncivilized, 
as  in  the  case  of  Turkey,  Persia,  China,  or  Japan;  or 
states  which  have  been  formed  by  ''civilized  men  in 
hitherto  uncivilized  countries,"  as  in  the  cases  of  the 
South  American  republics  or  the  Congo  Free  State;  or 
states  whose  independence  has  been  achieved  through  a 
successful  revolt,  as  in  the  case  of  the  United  States  in 
1783  and  the  Texan  Republic  in  1837.  Wliere  a  new  state 
is  formed  by  the  union  of  two  or  more  existing  states, 
recognition  then  usually  follows  as  a  matter  of  course. 
The  recognition  of  a  state  is  irrevocable  and  binds  only 
the  recognizing  and  the  recognized  states,  since  each 
state  has  a  right  to  determine  the  matter  for  itself.  In 
the  case  of  recognizing  the  independence  of  a  revolting 


10  INTERNATIONAL  LAW 

community,  great  caution  must  be  taken,  for,  if  recogni- 
tion takes  place  before  the  revolting  section  has  in  fact 
achieved  its  independence  and  thus  vindicated  its  rights 
as  a  sovereign  state,  the  parent  state  may  properly  object 
to  the  recognition  as  an  act  of  intervention.  The  recog- 
nition of  the  United  States  by  France  in  1778,  when  the 
contest  was  at  its  height  and  the  outcome  very  uncertain, 
amounted  to  an  act  of  intervention  which  the  parent  state 
had  a  right  to  resent  by  war  (7).  The  question  of  recog- 
nition is  a  political  and  not  a  judicial  question  (8). 

§  9.  Recognition  of  belligerency.  Before  a  revolting 
community  can  justify  its  claim  that  it  is  waging  war  and 
not  insurrection,  and  become  entitled  thereby  to  the  bel- 
ligerent rights  of  an  independent  state,  it  must  have  a 
well  organized  and  responsible  government,  occupying 
well-defined  territory,  and  carrying  on  a  conflict  of  threat- 
ening proportions  with  the  parent  state,  waged  for  politi- 
cal ends  and  in  accordance  with  the  laws  of  war.  Not 
being  yet  a  state,  it  cannot  enjoy  the  privileges  of  a  state 
in  making  war,  unless  the  rights  of  belligerency  are  ac- 
corded it.  In  other  words,  the  conflict  between  the  two 
forces  is  not  regulated  by  the  rules  of  law.  In  order  to 
avoid  this,  the  recognition  of  belligerency  is  frequently 
accorded  by  the  parent  or  other  states,  when  the  revolt 
has  reached  such  dimensions  as  to  amount  to  a  public 
war.  Eecognition  by  the  parent  state  extends  to  the  bel- 
ligerents all  the  rights  of  war  that  a  state  may  possess, 
frees  the  parent  state  from  the  responsibility  of  anything 

(7)  Lawrence.  Principles  of  International  Law,  sees.  56-59. 

(8)  Thompson  v.  Towles,  2  Simons,  194;  Jones  v.  U.  S.  137  U.  S. 
202. 


GENERAL  PEINCIPLES  11 

taking  place  within  the  revolting  territory  after  the  date 
of  recognition,  and  confers  upon  the  parent  state  also  the 
rights  of  a  belligerent,  giving  to  both  parties  the  right 
to  maintain  blockades,  to  demand  and  enforce  the  ob- 
servance of  neutrality,  to  establish  prize  courts,  and  to 
do  all  other  acts  allowable  in  war.  When  a  third  state 
alone  recognizes  a  belligerency,  it  has  the  same  eifect 
as  recognition  by  the  parent  state,  but  only  in  regard  to 
relations  between  itself  and  the  two  belligerents.  Eecog- 
nition  by  other  states  than  the  parent  state  is  not  al- 
lowable, however,  except  where  the  conflict  is  of  such  a 
nature  that  the  recognizing  state,  because  of  its  proximity 
to  the  seat  of  action  or  of  its  commerce  upon  the  sea, 
has  a  necessary  interest.  "The  reason  which  requires 
and  can  alone  justify  the  step  (recognition  of  belliger- 
ency) by  the  government  of  another  country,  is,  that  its 
own  rights  and  interests  are  so  far  affected  as  to  require 
a  definition  of  its  own  relations  to  the  parties.  ...  A 
recognition  by  a  foreign  state  of  full  belligerent  rights,  if 
not  justified  by  necessity,  is  a  gratuitous  demonstration 
of  moral  support  to  the  rebellion,  and  of  censure  upon 
the  parent  government"  (9). 

§  10.  Effects  of  changes  of  sovereignty.  When  a  new 
state  is  formed  by  securing  its  independence  from  the 
parent  state,  it  loses  all  the  personal  contract  rights  and 
is  freed  from  all  the  personal  obligations  of  the  parent 
state.  The  parent  state  still  continues  its  identity,  and  is 
therefore  entitled  to  all  rights  secured  to  that  state  and 
still  bound  to  all  its  general  or  personal  obligations.  On 
the  other  hand,  local  rights  concerning  the  lost  territory, 

(9)     Dana's  Wheaton,  34,  note  15. 


12  INTERNATIONAL  LAW 

such  as  rights  nnder  treaties  relating  to  the  cession  of 
such  territory  and  its  boundaries,  and  obligations  of  a 
purely  local  nature  pertaining  to  the  lost  domain,  such  as 
the  use  of  rivers  running  through  the  territory,  or  the 
payment  of  local  debts  contracted  for  local  objects  and 
secured  upon  local  revenues,  belong  to  the  new  state. 
"When  a  portion  of  a  state  is  ceded  to  another  state,  the 
general  rule  seems  to  be  as  laid  down  by  Westlake  that : 
''Territory  transferred  from  one  sovereign  to  another, 
whether  by  way  of  cession  or  of  conquest,  is  taken  over 
subject  to  all  those  rights  of  third  states  which  may  be 
said  to  inhere  in  the  soil  like  the  easements  or  servitudes 
of  private  law,  but  free  from  all  those  obligations  which 
were  merely  personal  to  the  late  sovereignty,  though  they 
might  have  had  to  be  performed  on  the  soil"  (10).  AVhen 
one  state  is  wholly  absorbed  by  another,  the  absorbing 
state  acquires  all  the  local  rights,  obligations,  and  prop- 
erty of  the  absorbed  state.  In  regard  to  the  treaties  con- 
cluded by  the  annexed  state,  it  is  clear  that,  whenever 
these  interfere  with  the  fixed  policies  or  constitutional 
provisions  of  the  annexing  state,  they  are  annulled.  The 
absorbing  state  becomes  liable  for  the  whole  of  the  debt 
of  the  acquired  state.  Thus,  it  was  held  in  the  Texan 
Bonds  case  (11)  that,  when  Texas  came  into  the  United 
States,  the  latter  then  became  bound  to  see  that  the  debts 
of  Texas  to  foreign  states  were  paid.  When  Great  Britain 
and  France  demanded  the  right  to  trade  with  Texas,  un- 
der the  terms  of  a  fonner  treaty  with  her,  the  United 


(10)  Lawrence,  GHl. 

(11)  1  Wharton's  Digest,  20-23. 


GENEEAL  PRINCIPLES  13 

States  held  that  trade  with  Texas  would  be  subject  to  the 
same  regulation  as  trade  with  any  other  portions  of  the 
country  (12).  The  change  of  sovereignty  from  one  state 
to  another  does  not  affect  private  rights  and  obligations. 
*'A  cession  of  territory  is  never  understood  to  be  a  ces- 
sion of  the  property  belonging  to  the  inhabitants.  .  .  . 
The  cession  of  territory  by  its  name  from  one  sovereign 
to  another,  conveying  the  compound  idea  of  surrender- 
ing at  the  same  time  the  lands  and  the  people  who  inhabit 
them,  would  be  necessarily  understood  to  pass  the  sover- 
eignty only,  and  not  to  interfere  with  private  property*' 
(13). 


(12)  Lawrence,  650-651. 

(13)  U.  S.  V.  Perchman,  7  Peters,  51, 


14  INTEKNATIONAL  LAW 


CHAPTER  n. 
INDEPENDENCE  AND  EQUALITY  OP  STATES. 

§  11.  Right  of  existence  and  independence.  The  whole 
system  of  the  law  of  nations  is  based  upon  the  assump- 
tion that  states  which  are  admitted  as  persons  in  inter- 
national law  are  in  possession  of  certain  rights  and  bound 
by  corresponding  obligations.  The  modem  doctrines  of 
the  law  originated  in  the  realization  that  the  hopes  of  a 
world-wide  empire  were  forever  shattered;  that,  instead 
of  one  mighty  ruler  governing  the  civilized  world,  there 
would  be  many  states  ruled  by  many  sovereigns;  that 
these  must  have  frequent  and  varied  relations  and  inter- 
course with  one  another;  and  therefore  that  the  peace 
and  order  of  the  civilized  world  could  only  be  secured  by 
the  mutual  recognition  of  the  fundamental  rights  of  states 
and  the  adoption  of  such  rules  of  international  conduct 
as  would  lead  to  their  better  observance.  Thus  the  old 
idea  of  only  one  supreme  state  was  replaced  by  the  idea 
of  several  states,  each  possessing  the  fundamental  rights 
of  national  independence.  Independence  has  been  de- 
fined as  "the  right  of  a  state  to  manage  all  its  affairs, 
whether  external  or  internal,  without  interference  from 
other  states,  as  long  as  it  respects  the  corresponding 
right  possessed  by  each  fully  sovereign  member  of  the 


GENEEAL  PRINCIPLES  15 

family  of  nations"  (1).  From  these  fundamental  rights 
of  independent  existence  flow  practically  all  of  the  rights 
and  duties  prescribed  by  international  law.  As  the  in- 
dividual's right  to  life  and  liberty  forms  the  foundation 
for  most  theories  of  politics  and  government,  so  the 
rights  of  the  nation  to  existence  and  independence  have 
been  the  basis  upon  which  the  laws  of  nations  have  been 
builded. 

The  independence  of  a  state  is  not  lost  by  the  mere  fact 
that  it  has  accepted  self-imposed  restrictions  upon  its 
freedom.  Mutual  concessions  between  states  are  often 
necessary  to  their  convenience  and  welfare.  Such  limi- 
tations are  frequently  imposed  by  treaty,  as  where  the 
United  States  and  England  in  the  Clayton-Bulwer  treaty 
of  1850  voluntarily  bound  themselves  to  acquire  no  ter- 
ritory in  Central  America  (2). 

§  12.  Extra-territorial  acts  in  self-defense.  While  it  is 
perfectly  clear  that  the  theory  of  the  independence  of  a 
state  makes  any  interference  with  that  s.tate  illegal,  yet, 
by  the  same  theory,  there  has  grown  up  a  practice  whereby 
a  state  may  violate  such  rights  when  justified  as  neces- 
sary to  its  own  independence.  In  such  cases,  it  is  said 
the  obligation  to  recognize  the  rights  of  another  state  is 
suspended.  States  may,  under  certain  conditions,  enter 
upon  foreign  territory  for  the  purpose  of  preventing  an 
attack  upon  their  own  government  by  persons  making  the 
foreign  government  a  base  of  operations  against  them. 
To  justify  such  action,  however,  the  danger  must  be  so 


(1)  Lawrence,  111. 

(2)  Treaties  of  the  United  States,  p.  441. 


16  INTERNATIONAL  LAW 

great  and  immediate,  or  beyond  the  power  of  the  invaded 
state  to  prevent  it,  that  it  is  in  fact  a  necessary  act  of  self- 
defense  against  the  violation  of  its  own  territorial  sov- 
ereignty. The  acts  performed  by  the  invading  states, 
should,  however,  be  confined  to  those  which  are  barely 
necessary  for  self-protection  (3).  During  the  Canadian 
rebellion  in  1838,  a  large  number  of  insurgents  seized  an 
island  in  the  Niagara  river,  and,  having  supplied  them- 
selves with  arms,  prepared  to  cross  over  into  Canada  by 
means  of  the  steamer  Caroline.  To  prevent  the  crossing, 
the  Caroline  was  boarded  by  English  officers  while  in 
American  waters  and  the  ship  destroyed.  The  United 
States  complained  of  the  invasion  of  her  territory.  The 
British  government  replied  that  there  was  no  alternative 
since  there  was  no  opportunity  to  apply  to  the  govern- 
ment, that  invasion  was  imminent,  that  therefore  there 
was  no  time  for  deliberation,  and  finally,  that  nothing 
more  was  done  than  necessary  in  self-defense.  The  mat- 
ter was  then  dropped  by  the  United  States  (4). 

§  13.  Intervention.  ''Intervention  takes  place  when  a 
state  interferes  in  the  relations  of  two  other  states,  with- 
out the  consent  of  botli  or  either  of  them,  or  when  it  inter- 
feres with  the  domestic  affairs  of  another  state  irre- 
spective of  the  will  of  the  latter,  for  the  purpose  of  either 
maintaining  or  altering  the  actual  conditions  of  things 
within"  (5).  It  differs  from  extra-territorial  acts  done 
in  self-defense  in  that  the  latter  are  acts  generally  per- 
formed upon  the  territory  of  the  invaded  state,  in  self- 


(3)  Hall,  p.  270. 

(4)  Pari.  Papers,  1843;  1  Whorton,  sec.  50,  c. 
(.'-))     Hall,  284. 


GENERAL  PEINCIPLES  17 

defense  against  a  local  attack  or  infringement  of  its  jur- 
isdiction, while  intervention  is  interference  in  the  inter- 
nal or  external  affairs  of  the  state  itself.  Both  are  forms 
of  intervention,  but  the  term  is  generally  applied  to  cases 
of  the  latter  description.  It  must  not  be  forgotten  that 
intervention  must  be  dictatorial  interference  and  must 
not  be  confused  with  good  offices,  mediation,  or  interces- 
sion, which  are  merely  different  forms  of  service  ren- 
dered by  friendly  powers  in  the  interests  of  peace  (6). 

§  14.  Interventions  of  right.  There  are  two  kinds  of 
intervention,  that  which  is  of  right,  and  that  which  is  only 
justifiable.  Since  independent  existence  is  a  fundamental 
right  of  a  state,  it  follows  that  the  right  of  intervention 
can  only  accrue  where  there  is  a  legal  restriction  upon  the 
independence  of  the  state  concerned,  and  where  the  state 
is  in  duty  bound  to  submit  to  the  interference.  Where 
there  is  no  such  restriction  upon  the  state's  independence, 
there  can  be  no  right  of  intervention  and  no  duty  to  sub- 
mit to  it.  But,  in  the  absence  of  any  restrictions  upon 
the  independence  of  the  state,  there  may  be  conditions 
which,  while  they  do  not  give  the  right  of  intervention,  do 
justify  such  interference.  In  such  cases  the  universal 
obligation  of  states  to  recognize  the  rights  of  independ- 
ence is  suspended,  and  the  state  may  interfere  without 
violating  international  law.  Since  there  is  no  right  to  in- 
tervene, however,  there  is  no  duty  on  the  part  of  the  state 
to  submit  and  it  is  perfectly  lawful  for  it  to  resist  the 
intervention  with  force.  Examples  of  intervention  of 
right  are  found  in  the  right  of  a  suzerain  power  to  in- 


(6)     1  Oppenheim,  p.  182-3. 


18  INTEENATIONAL  LAW 

tervene  in  certain  affairs  of  the  vassal,  or  the  right  of 
the  protecting  state  to  control  the  external  affairs  of  the 
protected  state.  Another  example  is  where  a  state  is  re- 
stricted by  treaty  in  its  internal  independence,  in  which 
ease  the  other  nations  to  the  treaty  have  a  right  to  in- 
tervene if  the  nation  does  not  comply  with  the  provisions 
of  the  agreement  (7). 

§  15.  Interventions  that  are  only  justifiable.  As  we 
have  already  seen,  independence  is  one  of  the  fundamental 
rights  of  international  law.  But  one  state  cannot  enjoy 
this  right  at  the  expense  of  another  state,  and,  when  it 
does,  then  intervention  by  the  threatened  state  is  justified 
on  the  ground  of  self-preservation.  Thus,  *'if  a  govern- 
ment is  too  weak  to  prevent  actual  attacks  upon  a  neigh- 
bor by  its  subjects,  if  it  foments  revolution  abroad,  or  if 
it  threatens  hostilities  which  may  be  averted  by  its  over- 
throw, a  menaced  state  may  adopt  such  measures  as  are 
necessary  to  obtain  substantial  guarantee  for  its  own  se- 
curity" (8).  The  danger  must  be  direct  and  immediate 
and  of  sufficient  gravity  to  justify  an  appeal  to  war. 
Thus,  when  in  1804  it  was  discovered  that  Spain  had  en- 
gaged to  assist  France  in  her  war  against  England,  and 
was  preparing  a  naval  armament  in  the  harbor  of  Ferrol, 
the  British  government  vigorously  objected,  and,  when 
their  objections  were  disregarded,  commenced  hostili- 
ties (9).  This  seems  to  have  been  a  case  where  the 
danger  was  direct  and  immediate,  and  of  such  magnitude 


(7)  1  Oppenheim,  sec.  135. 

(8)  Hall,  286. 

(9)  Annual  Register  (1805),  20-27. 


GENERAL  PEINCIPLES  19 

as  to  justify  a  resort  to  war.  Where,  however,  the  danger 
to  the  intervening  state  arises  only  as  an  indirect  result 
of  the  existence  of  a  form  of  government  or  the  prevalence 
of  certain  ideals,  then  there  is  no  direct,  immediate 
danger,  and  intervention  cannot  he  justified.  To  justify  it 
under  such  conditions  would  he  to  hold  that  one  form  of 
state  life  would  have  the  right  to  live  and  profit  at  the 
expense  of  another  (10). 

§  16.  Intervention  against  wrong-daing.  Intervention 
in  restraint  of  wrong-doing  is  either  directed  against  acts 
that  are  illegal  or  acts  that  are  only  immoral.  In  the  first 
case  it  would  seem  clear  that  intervention  to  prevent  the 
infraction  of  the  rules  of  law  would  not  only  be  justifiable 
but  necessary,  as  a  condition  to  an  effective  system  of 
international  jurisprudence.  Such  intervention  might 
well  be  classed  as  an  intervention  of  right,  rather  than 
a  mere  justifiable  intervention,  for  a  state  should  be  bound 
to  submit  peacefully  to  an  intervention  whose  only  pur- 
pose was  the  enforcement  of  law. 

Intervention  against  immoral  acts,  such  as  oppression, 
religious  persecution,  governmental  tyranny,  etc,  can  only 
be  justified  on  the  ground  that  such  acts  are  illegal  in 
the  eyes  of  international  law.  But  there  is  nothing  in 
the  nature  of  international  law  and  its  fundamental  doc- 
trines that  attempts  to  limit  the  manner  in  which  each 
state  shall  deal  with  its  own  subjects.  That  is  purely 
a  domestic  question.  There  is,  however,  a  decided  ten- 
dency to  justify  such  intervention,  and  the  time  may 
come  when  international  law  will  so  provide,  but  certainly 


(10)     Hall,  286. 


20  INTEENATIONAL  LAW 

there  has  not  yet  been  such  a  nnanimity  of  practice  and 
expression  as  to  justify  such  an  assertion.  The  inter- 
ference of  the  United  States  in  the  affairs  of  Cuba  on  the 
ground  of  humanity  is  a  recent  example  of  such  inter- 
vention (11). 

§  17.  Intervention  to  secure  balance  of  power.  From 
the  seventeenth  century  down  to  recent  times,  the  idea 
of  the  balance  of  power  between  the  various  states  of 
Europe  was  considered  an  undoubted  maxim  of  Euro- 
pean diplomacy,  and,  among  the  nations  concerned,  the 
practice  of  intervention  to  preserve  the  proportional  share 
of  power  was  never  questioned  until  recent  times.  That 
such  ground  constitutes  a  justification  for  intervention  to- 
day, while  affirmed  by  some  of  the  English  writers  (12), 
is  a  proposition  that  cannot  be  upheld.  While  adopted  by 
the  leading  nations  of  Europe  at  one  time  or  another,  it 
has  never  received  that  unanimous  approval  of  the  civil- 
ized nations  of  the  world  necessary  to  make  it  a  binding 
rule  of  law,  and  cannot  be  supported  by  the  general  prin- 
ciples of  law,  except  so  far.  as  the  balance  of  power  is  nec- 
essary to  the  self-preservation  of  any  one  state  or  states, 
in  which  case  the  intervention  by  the  states  so  affected, 
would  be  justifiable  upon  grounds  already  mentioned. 

§  18.  Other  causes  of  intervention.  It  has  sometimes 
been  contended  that  when  a  number  of  states  act 
in  unison  in  intervening,  the  united  character  of  the 
intervention  makes  it  justifiable  when  otherwise  it  would 
be  illegal.    It  is  generally  admitted  that  the  action  of  a 


(11)  United  States'  Foreign  Relations   (1S98),  7G0. 

(12)  1  Oppenheim,  185-6. 


GENERAL  PRINCIPLES  21 

number  of  states  would  probably  be  more  just  and  wise 
than  the  action  of  a  single  state,  but  such  a  consideration 
could  go  no  farther  than  to  afford  a  moral  justification. 
Legally  a  number  of  states  could  have  no  more  right  to 
interfere  than  a  single  state,  and  such  is  clearly  the  law. 
In  the  case  of  civil  wars,  the  opinion  that  intervention  in 
aid  of  the  parent  state  is  justifiable  was  once  held  by 
many  writers,  but  has  now  generally  been  abandoned. 
It  is  easy  to  see  that  intervention  in  behalf  of  the  revolt- 
ing party  is  an  interference  in  the  independence  of  the 
parent  state  and  is  therefore  unjustifiable.  It  is  also  clear 
that  international  law  does  recognize  the  existence  of  a 
de  facto  state  in  revolution,  and  grants  it  certain  rights 
of  belligerency  when  it  has  sufficient  strength  behind  it 
to  make  its  final  existence  a  matter  of  uncertainty,  and 
it  ought  to  follow  from  this  recognition  that  any  inter- 
ference with  a  de  facto  state  is  an  interference  with  its 
legal  belligerent  rights  and  is  therefore  unlawful  (13). 

§  19.  Distinction  between  law  and  policy  as  basis  for  in- 
tervention. Care  must  be  taken,  in  the  study  of  the  ques- 
tion of  intervention,  to  distinguish  between  matters  of 
law  and  matters  of  policy.  The  question  of  the  balance 
of  power  is  purely  a  matter  of  the  foreign  policy  of 
certain  states  of  Europe,  and  has  already  been  pointed 
out  as  not  being  a  rule  of  international  law.  So  with  the 
Monroe  doctrine,  which  is  nothing  but  a  part  of  the 
foreign  policy  of  the  United  States.  As  a  matter  of  world 
politics,  it  is  tremendously  important,  but  it  has  no  effect 


(13)     Hall,  293. 


22  INTERNATIONAL  LAW 

or  significance  in  international  law;  If  intervention  is 
justifiable  in  upholding  it,  its  justification  would  not  be 
the  Monroe  doctrine,  but  would  have  to  depend  upon  the 
fact  that  the  self-preservation  of  the  United  States  was 
dependent  upon  its  immediate  enforcement. 


GENEEAL  PEmCIPLES  23 


CHAPTER  III. 

TERRITORIAL  DOMAIN  AND  JURISDICTION. 

§  20.  Jurisdiction.  Jurisdiction  is  the  right  of  the  state 
to  exercise  authority  and  control  over  persons,  actions, 
and  things.  So  far  as  the  state  exercises  this  right  with 
regard  to  its  own  citizens  and  within  its  own  territory,  no 
question  of  international  law  is  involved.  It  is  only  when 
there  is  a  conflict  between  the  jurisdictional  claims  of 
different  states  that  there  is  a  resort  to  the  law  of  nations. 
For  the  purposes  of  our  study  the  various  phases  of  juris- 
diction may  be  classified  as  territorial  jurisdiction,  deal- 
ing with  the  jurisdiction  of  the  state  within  the  limits  of 
its  territorial  property;  fluvial  and  maritime  jurisdic- 
tion, concerning  the  exercise  of  this  authority  upon  its 
territorial  waters,  its  public  and  private  boats  when  with- 
out its  territorial  limits,  and  upon  the  high  seas;  and 
jurisdiction  over  persons,  which  has  to  do  with  the  state 's 
control  over  its  citizens  when  abroad  and  its  treatment 
of  foreign  citizens  at  home. 

Section  1.    Territorial  Jurisdiction. 

§20a.    Territorial  property.    ''The  territorial  property 

of  a  state  consists  of  all  the  land  and  water  within  that 

portion  of  the  earth's  surface  which  it  claims  by  legal 

title,  and,  when  it  abuts  upon  the  sea,  together  with  a 

Vol.  X— 4 . 


24  INTEENATIONAL  LAW 

certain  margin  of  water  "  ( 1 ) .  The  general  theory  is  that 
within  the  limits  of  its  territorial  property  the  state  has 
absolute  and  unqualified  jurisdiction.  Were  this  entirely 
true  the  problems  arising  out  of  the  question  of  jurisdic- 
tion would  be  greatly  simplified,  but  such  is  not  the  case. 
Experience  has  shown  that  international  convenience  is 
subserved  by  allowing  each  nation  to  retain  a  certain 
degree  of  its  jurisdiction  over  its  merchant  vessels  when 
in  the  territorial  waters  of  another  state,  and  that  friendly 
relations  are  fostered  and  the  idea  of  national  sovereignty 
observed  by  removing  public  ships  and  diplomatic  agents 
from  the  territorial  jurisdiction  of  foreign  nations.  These 
are  but  typical  examples  of  the  limitations  upon  the 
general  theory  of  jurisdiction  over  territorial  property, 
and  will  be  discussed  later.  We  must  first  consider  the 
question  of  how  this  territorial  property  may  be  acquired. 
§  21.  Acquisition  of  territory:  Discovery  and  occupa,- 
tion.  Five  modes  of  acquiring  territory  may  be  dis- 
tinguished as  follows:  discovery  and  occupation,  con- 
quest, cession,  prescription,  and  accretion.  In  the  days 
of  the  discoveries  it  was  generally  held  that  the  mere 
fact  of  discovery  by  the  agents  of  the  state  gave  a  clear 
title  to  the  territory.  Later,  actual  occupation  was  held 
to  be  necessary  to  perfect  the  title  of  discovery,  but  it 
was  not  until  the  eighteenth  century  that  effective  occu- 
pation was  insisted  upon  by  the  writers,  and  it  was  the 
nineteenth  century  before  the  practice  of  states  conformed 
to  such  a  rule.  The  fact  of  discovery  is  still  of  some  im- 
portance, however.    ''It  is  agreed  that  discovery  gives  to 


(1)     Glenn,  International  Law,  45. 


GENEEAL  PEINCIPLES  25 

the  state,  in  whose  service  it  was  made,  an  inchoate  title ; 
it  'acts  as  a  temporary  bar  to  occupation  by  another  state' 
within  such  period  as  is  reasonably  sufficient  for  effec- 
tively occupying  the  discovered  territory.  If  such  period 
elapses,  without  any  attempt  by  the  discovering  state  to 
turn  its  inchoate  title  into  a  real  title  by  occupation,  such 
inchoate  title  perishes  and  any  other  state  can  now  acquire 
territory  by  means  of  an  effective  occupation"  (2). 

To  make  occupation  legally  effective  it  is  necessary 
that  the  parties  occupying  have  either  the  general  or 
special  authority  of  the  state  for  which  they  are  acting, 
and  that  the  state  by  some  formal  act  evidence  its  in- 
tention to  acquire  sovereignty  over  it,  all  of  which  must 
be  supplemented  within  a  reasonable  time  by  the  actual 
establishment  of  some  governmental  authority.  The  ten- 
dency still  further  to  limit  the  right  of  acquisition  by  oc- 
cupation is  evidenced  by  the  declaration  of  the  Berlin 
Conference  of  1885,  which  bound  the  signatory  powers  in 
the  case  of  any  further  acquisition  of  territory  in  Africa 
' '  to  protect  existing  rights,  and,  as  the  case  may  be,  free- 
dom of  trade  and  transit  under  the  conditions  agreed 
upon"  (3). 

§  22.    Same:  Extent  of  territory  acquired  by  discovery. 

The  question  as  to  the  extent  of  the  territory  secured 
through  occupation  is  frequently  a  very  difficult  question. 
The  United  States  commissioners,  appointed  to  settle  the 
Louisiana  boundary  dispute,  held :  ' '  When  any  European 
nation  takes  possession  of  any  extent  of  seacoast,  that 


(2)  1  Oppenheim,  278. 

(3)  Hall,  113-115;  Pari.  Papers,  Africa,  No.  4,  1885. 


26  INTERNATIONAL  LAW 

possession  is  understood  as  extending  into  the  interior 
country,  to  the  sources  of  the  rivers  emptying  themselves 
within  that  coast,  to  all  their  branches,  and  the  country 
they  cover,  and  to  give  it  rights  to  the  exclusion  of  all 
other  nations  to  the  same"  (4).  Since,  however,  effective 
occupation  and  control  are  essential  to  complete  the  legal 
title,  it  would  seem  that  only  so  much  of  the  territory  as 
has  been  reduced  to  the  effective  control  of  the  acquiring 
state  can  be  properly  claimed,  and,  therefore,  that  the 
rule  as  stated  by  the  commissioners  is  too  broad. 

§23.  Same:  Conquest  and  cession.  Territory  is  ac- 
quired by  conquest,  where  there  is  a  long  occupation  of 
the  territory  with  the  intent  to  continue  the  possession 
for  an  indefinite  period,  and  where  there  has  not  been  a 
material,  continued  effort  on  the  part  of  the  opposing 
state  to  regain  possession.  Mere  military  occupation, 
even  for  a  considerable  length  of  time,  is  not  sufficient. 
Title  by  conquest  may  also  be  confirmed  by  an  act  of 
cession  or  treaty  of  peace.  The  acquisition  of  the  Phil- 
ippines by  the  United  States  was  a  case  of  conquest  con- 
firmed by  an  act  of  cession.  Acquisition  of  territory  by 
cession  is  quite  common.  In  such  cases  the  validity  of 
the  title  rests  upon  its  recognition  by  the  ceding  state. 

§24.  Same:  Prescription.  "Title  by  prescription 
arises  out  of  a  long  continued  possession,  where  no 
original  source  of  proprietary  right  can  be  shown  to 
exist,  or  where,  possession  in  the  first  instance  being 
wrongful,  the  legitimate  proprietor  has  neglected  to  assert 


(4)     Scott,  Cases  on  International  Law,  74,  note. 


GENEEAL  PKINCIPLES  27 

his  rights,  or  has  been  unable  to  do  so"  (5).  The  object 
of  prescription  is  to  secure  a  stable  international  order 
by  preventing  the  opening  of  old  controversies  over  con- 
ditions which  have  long  been  acquiesced  in  and  have  be- 
come established  facts  in  international  relations.  The 
length  of  time  required  for  the  acquisition  of  a  title  by 
prescription  has  never  been  determined,  each  case  being 
decided  upon  its  own  merits.  Thirty  years  has  been  sug- 
gested as  the  minimum,  while  fifty  years  has  received  the 
sanction  of  many  writers.  By  prescription  the  titles  to 
the  portions  of  Poland  have  become  valid  in  the  hands  of 
the  states  who  were  parties  to  the  partition,  though  per- 
haps not  valid  by  the  original  act  (6). 

§25.  Same:  Accretion.  Title  by  accretion  is  a  title 
by  which  the  land  formed  by  the  action  of  the  waters  is 
held  generally  by  the  state  having  jurisdiction  over  the 
waters  in  question.  The  land  formed  by  alluvium  near 
the  coast  of  a  state  belongs  to  that  state.  In  the  case  of 
the  Anna  (7)  it  was  held  that  certain  mud  islands,  formed 
off  the  coast  of  the  United  States  near  the  mouth  of  the 
Mississippi  Eiver,  were  a  part  of  the  United  States,  and 
that  the  territorial  waters  of  the  United  States  were  to 
be  reckoned  from  the  islands  and  not  from  the  mainland. 
"Where  a  river  is  a  boundary  between  states,  the  owner- 
ship of  islands  formed  in  a  river  will  depend  upon  what 
portion  of  the  river  constitutes  the  boundary  line  (8) 


(5)  Hall,  118. 

(6)  Vattel,  International  Law,  Book  II,  chap.  11;  Rhode  Island  v. 
Massachusetts,  4  Howard,  639. 

(7)  5  C.  Robinson,  372. 

(8)  1  Halleck,  International  Law,  146. 


28  INTERNATIONAL  LAW 

§  26.  Boundaries  of  state  territories.  The  boundary 
lines  of  the  territory  of  a  state  may  be  artificial  or 
natural.  That  is,  the  boundary  may  be  a  line  drawn  be- 
tween two  given  points,  or  along  a  certain  parallel,  or  it 
may  be  described  merely  as  following  a  given  mountain 
range  or  a  river.  Such  boundaries  are  more  or  less  in- 
definite, and  consequently  certain  rules  for  their  inter- 
pretation have  been  adopted.  When  the  boundary  follows 
a  mountain  range,  a  line  run  along  the  water  divide  is 
generally  adopted  as  the  boundary. 

§  27.  River  boundaries.  When  a  river  is  designated 
as  the  boundary,  the  general  rule  is,  that,  if  the  river  is 
not  navigable,  a  line  drawn  midway  between  the  low 
water  marks  on  either  side  is  the  dividing  line.  Where 
the  river  is  navigable,  a  line  drawn  through  the  middle 
of  the  main  or  deepest  channel  forms  the  boundary.  When, 
however,  one  state  owned  the  territory  on  both  sides  of 
the  river  originally,  and  then  granted  the  territory  on 
the  other  side  to  another  state,  the  boundary  between  the 
two  states  is  not  the  middle  of  the  channel,  but  is  the  low 
water  mark  on  the  side  of  the  river  occupied  by  the 
grantee,  so  that  the  whole  bed  belongs  to  the  granting 
state.  This  was  the  rule  adopted  in  the  case  of  Handly's 
Lessee  v.  Anthony  (9),  in  which  case  the  question  before 
the  court  was  what  part  of  the  Ohio  river  formed  the 
boundary  between  Indiana  and  Illinois.  The  land  on  both 
sides  was  originally  owned  by  Virginia,  which  granted  to 
CongTess  all  her  right  in  the  territory  ''northwest  of  the 
river   Ohio."     In   giving   its    opinion   the    court    said: 

(0)     5  Wheaton,  374. 


GENERAL  PRINCIPLES  29 

*' When,  as  in  this  case,  one  state  is  the  original  jDroprietor 
and  grants  the  territory  on  one  side  only,  it  retains  the 
river  within  its  own  domain,  and  the  newly  created  state 
extends  to  the  river  only.  The  river,  however,  is  its 
boundary."  The  same  rule  applies  where  a  state  has 
occupied  the  land  on  one  side  of  a  river,  before  occupa- 
tion has  taken  place  upon  the  opposite  side  by  another 
state.  In  cases  where  the  river  changes,  the  general  rule 
is,  that,  if  the  change  is  imperceptible,  the  boundary  still 
follows  the  river,  but  when  there  is  a  sudden  change  the 
old  line  of  boundary  remains.  In  the  case  of  Cooley  v. 
Golden  (10),  the  Missouri  river,  which  was  the  common 
boundary  between  Missouri  and  Nebraska,  suddenly 
changed  its  course  leaving  the  old  river  bed  dry,  so  that 
part  of  the  land  that  was  on  the  Nebraska  side  was  now 
on  the  Missouri  side.  The  court  decided  that  the  boundary 
line  was  still  the  middle  of  the  old  river  bed,  since  the 
change  was  sudden  and  perceptible. 

§  28.  Lake  and  sea  boundaries.  Where  lakes  or  land 
locked  seas  form  the  boundary,  unless  there  is  a  special 
treaty  provision,  or  evidence  of  prior  appropriation  of 
the  entire  bed  of  the  lake  or  sea,  the  boundary  will  be  a 
line  drawn  through  the  middle  of  such  lakes  or  seas.  The 
same  rule  is  true  where  narrow  straits  form  the  boundary 
of  two  states.  Where  the  ocean  is  used  as  the  boundary, 
the  line  will  be  drawn  at  least  three  miles  out  from  the 
low  water  mark  (11). 

§  29.    Qualified    jurisdiction:    Protectorates.    Besides 


(10)  52  Mo.  Appeals,  52. 

(11)  1  Oppenheim,  254-6. 


30  INTEENATIONAL  LAW 

the  general  jurisdiction  of  a  state  within  its  territorial 
boundaries,  there  are  two  kinds  of  qualified  territorial 
jurisdiction  which  are  exercised  by  nations  over  territory 
which  is  not  their  own.  These  are  found  in  the  protec- 
torates and  the  spheres  of  influence.  A  protectorate  is  a 
sort  of  international  guardianship  assumed  over  smaller 
states,  either  as  a  result  of  treaty  provisions  between  the 
parties  concerned,  or  merely  as  the  unilateral  act  of  the 
protecting  states  because  of  their  commercial  or  political 
interest  in  the  protected  states.  The  degree  of  jurisdic- 
tion exercised  varies  widely  in  different  cases.  In  general, 
it  may  be  said  that  the  protecting  state  assumes  juris- 
diction over  all  the  foreign  affairs,  and  thereby  becomes 
answerable  to  other  nations  for  all  foreign  obligations. 
The  protecting  state  cannot  be  held  responsible  for  the 
particular  form  of  government  adopted,  but  it  must  as- 
sume some  jurisdiction  over  such  internal  affairs  as  may 
lead  to  international  complications.  It  must  see  that  a 
reasonable  guaranty  of  safety  to  the  lives  and  property 
of  foreigners  is  afforded.  The  protectorate  excludes 
foreign  powers  from  interference,  and,  if  wronged  by  the 
protected  state,  they  must  look  to  the  j^rotecting  state 
for  indemnity  (12). 

§  30.  Same:  Spheres  of  influence.  "The  term  'spheres 
of  influence'  is  applied  to  portions  of  territory  lying 
within  certain  well-defined  boundaries  and  occupied  by 
uncivilized  races,  within  each  of  which  the  influence  of  a 
particular  European  state  is  paramount.  The  practice 
of  establishing  spheres  of  influence,  which  is  of  very 


(12)     Westlake,  174-7. 


GENEEAL  PRINCIPLES  31 

recent  origin,  amounts,  in  fact,  to  a  distribution  of  un- 
civilized territory  among  the  principal  states  of  Europe 
by  treaty  defining  the  boundaries  of  the  areas  within  which 
their  influence  shall  be  supreme"  (13).  These  treaties, 
which  are  generally  made  without  the  consent  of  the 
people  of  the  distributed  territory,  bind  no  one  except 
the  parties  to  the  treaty,  although  any  attempt  to  inter- 
fere with  the  nation's  sphere  would  be  considered  an  un- 
friendly act.  Some  spheres  are  secured  by  agreement 
with  the  local  tribes,  but,  since  the  state  assumes  no  ob- 
ligation to  other  nations  for  the  protection  of  their  citizens 
in  such  territories,  and  does  not  assume  any  jurisdiction 
over  the  territory,  it  has  no  legal  right  which  other  nations 
are  bound  to  respect  (14). 

Section  2.  Fluvial  and  Maritime  Jurisdiction". 
§  31.  Rivers.  Fluvial  and  maritime  jurisdiction  ex- 
tends to  all  the  bodies  of  water  within  the  territorial 
boundaries  of  the  state ;  to  all  its  ships,  both  public  and 
private,  when  outside  its  territorial  limits;  and  to  its 
jurisdictional  rights  over  the  high  seas.  It  has  been  from 
time  to  time  asserted  that  a  state's  jurisdiction  over  the 
rivers  within  its  boundaries  is  subject  to  the  right  of  inno- 
cent passage  or  free  navigation  on  the  part  of  the  nations 
of  the  world.  The  consensus  of  opinion,  as  well  as  the 
practice  of  the  nations  does  not  conform,  however,  to  that 
assertion,  but  does  conform  to  the  general  proposition 
that  a  state's  jurisdiction  over  rivers  or  such  parts  of 
rivers  as  are  within  its  boundaries  is  exclusive,  and  that 


(13)  Davis,  Elements  of  International  Law,  109. 

(14)  Westlake,  187-9;  20  Revue  de  Droit  Int.  5-35. 


32  INTEENATIONAL  LAW 

other  nations  have  no  right  of  navigation  except  by  ex- 
press consent.  Where  the  boundary  line  between  two 
states  is  the  middle  of  a  river,  both  states  then  have  the 
right  of  navigation.  Where  rivers  are  international  in 
their  character  and  are  navigable  from  the  sea,  there  is  a 
tendency  to  grant  the  right  of  navigation.  The  Vienna 
Congress  of  1815  proclaimed  free  navigation  npon  the 
international  rivers  of  Europe  to  all  nations  of  the  world. 
The  peace  treaty  of  Paris  of  1856  expressly  declared  that 
the  principle  of  the  Vienna  Congress,  regarding  free 
navigation  upon  the  international  rivers  of  Europe,  was 
a  part  of  '^ European  public  law"  (15).  In  1885  the  final 
act  of  the  West  African  Conference  decreed  that  the 
Congo  and  the  Niger  should  be  opened  to  the  navigation 
of  all  nations  without  exception  (16).  That  such  a  prin- 
ciple is  not  yet  the  established  law  is  made  evident  by 
the  negotiation  between  the  United  States  and  England^ 
concerning  the  unsuccessful  claim  of  the  United  States  to 
the  right  to  navigate  the  St.  Lawrence  river  (17).  Thus, 
the  jurisdiction  of  a  state  over  rivers  or  parts  of  rivers 
within  its  territory  may  be  said  to  be  exclusive,  although 
there  is  a  decided  tendency  to  limit  such  jurisdiction  by 
the  right  of  free  navigation,  which  is  generally  granted 
now  as  a  mere  matter  of  comity. 

§  32.  Entirely  enclosed  lakes  and  seas.  Such  lakes 
and  landlocked  seas  as  are  entirely  enclosed  by  the  land 
of  one  state  are  clearly  a  part  of  that  state  and  subject 


(15)     1  Oppenhelm,  227-0. 

(10)     British  State  Tapers,  Africa,  No.  4  (1885),  p.  308-11. 

(17)     Treaties  of  United  States,  pp.  488,  1007,  1382-4. 


GENERAL  PEINCIPLES  33 

to  its  exclusive  jurisdiction.  Wliere,  however,  the  lake 
or  sea  is  surrounded  by  the  territory  of  several  states 
there  is  some  uncertainty,  but  the  weight  of  authority 
and  international  practice  indicate  that  they  are  parts  of 
the  surrounding  territory.  International  lakes  and  land- 
locked seas  are  those  where  navigation  to  the  open  sea  is 
possible.  These  are  subject  to  the  same  jurisdiction  as 
those  just  discussed,  except  there  may  be  said  to  be  a 
tendency  towards  free  navigation  of  such  bodies  of  water, 
based  upon  the  analogy  of  the  tendency  in  favor  of  free 
navigation  in  the  case  of  international  rivers  (18). 

§  33.  Gulfs  and  bays.  Gulfs  and  bays,  which  are  sur- 
rounded by  the  territory  of  one  state  and  whose  entrance 
is  not  over  six  miles  in  width,  are  everywhere  admitted  to 
be  within  the  jurisdiction  of  that  state,  upon  the  accepted 
theory  that  the  jurisdiction  of  a  maritime  state  extends 
three  miles  at  least  into  the  bordering  ocean.  The  present 
practice  and  opinion  of  writers,  moreover,  extends  such 
jurisdiction  to  all  such  gulfs  and  bays  whose  entrances 
are  narrow  enough  to  be  commanded  by  coast  batteries 
on  either  or  both  sides  of  the  entrance.  The  Institute  of 
International  Law  has  declared  in  favor  of  a  twelve  mile 
entrance,  and  recognizes  jurisdiction  over  gulfs  and  bays 
with  a  wider  entrance  where  the  jurisdiction  has  been  ad- 
mitted for  one  hundred  years  (19).  In  the  case  of  Stet- 
son V.  IT.  S.  (20),  it  was  held  that  Chesapeake  Bay, 
which  is  about  twelve  miles  wide  at  its  mouth,  and  for  a 
distance  of  125  miles  is  eight  miles  or  more  wide,  was  not 


(18)  1  Oppenheim,  230-1. 

(19)  Anniiaire  XIII,  p.  329. 

(20)  4  Moore's  International  Arbitration,  4333. 


34  INTERNATIONAL  LAW 

a  part  of  the  high  seas  but  a  part  of  the  territorial  waters 
of  the  United  States.  In  the  case  of  the  Direct  United 
States  Cable  Company  v.  Anglo-American  Tel.  Company, 
decided  in  the  House  of  Lords  (21)  it  was  held  that  Con- 
ception Bay,  which  is  15  miles  in  width  and  40  miles  in 
length,  was  within  the  territory  and  jurisdiction  of  New- 
foundland, since  the  bay  was  entirely  within  Newfound- 
land's territory  and  since  the  British  dominion  had  been 
exercised  over  it  for  a  long  period  of  time. 

In  view  of  all  these  conditions  it  is  difficult  to  determine 
just  what  the  law  is,  but  certainly  it  may  be  said  that  the 
restriction  of  six  miles  at  the  entrance  is  no  longer  law, 
and  eveiy  case  will  have  to  be  determined  upon  its  own 
peculiar  facts.  However,  it  may  be  asserted  that  where 
the  entrance  is  so  wide  that  it  cannot  be  commanded  by 
coast  batteries,  or  where  the  bay  or  gulf  is  surrounded  by 
more  than  one  state,  they  cannot  be  appropriated,  and  the 
jurisdiction  of  the  states  will  extend  only  over  the  three 
miles  of  marginal  seas. 

§  34.  Straits.  Where  the  territory  on  both  sides  of 
straits  is  owned  by  the  same  state,  and  where  it  is  so  nar- 
row that  it  can  be  commanded  by  shore  batteries  it  may  be 
said  to  be  within  the  jurisdiction  of  the  state.  Where  the 
territory  upon  both  sides  is  owned  by  different  states,  the 
middle  of  the  main  channel  is  the  boundary  line,  and  the 
jurisdiction  of  each  state  extends  to  its  boundaries. 

§  35.  Canals.  In  the  case  of  canals  within  the  territory 
of  one  state  there  would  seem  to  be  no  reason  why  the 
rules  regarding  rivers  would  not  apply.    But  in  regard 

(21)     2  Appeal  Cases,  394. 


GENERAL  PRINCIPLES  35 

to  inter-oceanic  canals,  the  tremendous  importance  at- 
taching to  them  because  of  their  bearing  on  the  world's 
commerce  and  on  naval  affairs,  has  caused  them  to  be  a 
topic  of  much  discussion  among  the  powers,  especially 
since  the  opening  of  the  Suez  canal  in  1869.  This  finally- 
culminated  in  the  Convention  of  Constantinople  of  1888, 
providing  that  the  canal  should  be  open  to  all  the  com- 
merce and  warships  of  the  world  and  that  the  strictest 
rules  of  neutrality  should  be  enforced  (22).  By  the  treaty 
between  England  and  the  United  States  in  1901,  it  was 
provided  that  the  United  States  should  construct  the 
Panama  canal  and  that  it  should  have  the  right  to  regu- 
late and  police  it ;  that  the  canal  should  be  open  to  the  ves- 
sels of  war  and  commerce  of  the  world  upon  equal  terms ; 
and  that  strict  neutrality  should  be  enforced  (23).  The 
question  is  such  a  recent  one  that  no  general  rule  of  law 
can  be  asserted  concerning  it. 

§  36.  Marginal  seas.  The  marginal  sea  is  that  part  of 
the  sea  bordering  upon  the  territory  of  a  state,  over 
which  that  state  has  the  right  of  jurisdiction.  The  width 
of  marginal  sea  was  originally  conceded  to  be  about  three 
miles,  as  a  result  of  the  general  adoption  of  Bynker- 
shoek's  rule  that  the  jurisdiction  of  the  state  ends  where 
effective  use  of  arms  ends.  But  since  the  end  of  the 
eighteenth  century  the  range  of  guns  has  been  greatly  in- 
creased from  time  to  time,  and  for  this  reason  there  is  no 
uniform  opinion  as  to  what  may  be  legally  claimed  as  the 
marginal  sea.    According  to  the  clear  principle  underly- 


(22)  Holland,  Studies  in  International  Law,  278. 

(23)  1  Oppenheim,  236-9. 


36  INTEKNATIONAL  LAW 

ing  the  rule,  it  would  seem  tliat  the  marginal  seas  should 
be  extended  to  the  length  of  a  cannon  shot  and  this  has 
occasionally  been  done  in  individual  cases,  though  there 
is  no  generally  accepted  practice  to  that  effect.  The  In- 
stitute of  International  Law  in  1894  imanimously  de- 
clared that  the  width  of  marginal  sea  should  be  extended 
to  six  miles,  and,  for  purposes  of  neutrality,  to  the  ex- 
treme range  of  a  cannon.  The  time  certainly  is  not  far 
distant  when  the  width  will  be  increased  by  common  con- 
sent.   The  width  is  measured  from  the  low  water  mark. 

§  37.    Nature  of  jurisdiction  over  territorial  waters.  We 

shall  now  consider  the  nature  and  extent  of  the  jurisdic- 
tion which  a  maritime  state  possesses  over  its  territorial 
waters.  We  have  already  seen,  in  the  case  of  rivers,  land- 
locked lakes  and  seas,  and  possibly  canals,  that  the  juris- 
diction of  the  maritime  states  is  technically  absolute  and 
exclusive.  But  such  is  not  the  law  with  regard  to  the 
other  territorial  waters  of  the  state.  The  jurisdiction 
over  gulfs,  bays  straits,  and  marginal  seas  is  not  with- 
out its  limitations.  The  riparian  state  has  the  authority 
to  reserve  all  fishery  rights  within  territorial  seas  for  its 
own  subjects ;  it  undoubtedly  has  the  right  to  prohibit  all 
foreign  vessels  from  engaging  in  coastwise  trade  and 
navigation,  and  it  may  also  make  and  enforce  all  needful 
port  regulations  and  maritime  rules,  which  vessels  must 
observe  in  its  territorial  waters.  Its  jurisdiction  in  mat- 
ters of  police  regulation  cannot  be  properly  disputed.  As 
to  its  jurisdiction  over  foreign  merchantmen  within  its 
waters,  there  is  a  conflict  in  authority.  One  view  is  that 
when  the  ship  drops  anchor  in  territorial  waters,  it  then 


GENEEAL  PEINCIPLES  37 

comes  under  tlie  general  jurisdiction  of  the  riparian  state, 
subject  to  certain  qualifications.  The  other  view  is  that 
ships  in  merely  passing  through  the  territorial  waters  of 
the  state  are  subject  to  the  absolute  jurisdiction  of  the 
riparian  state.  The  latter  view  seems  to  have  received 
its  chief  support  from  England,  while  the  great  majority 
of  the  writers  and  the  practice  of  most  nations  conform 
to  the  first  view,  which  is  well  supported  on  considera- 
tions of  general  convenience.  Over  public  ships  of  for- 
eign powers  the  local  state  has  no  jurisdiction,  save  for 
the  enforcement  of  necessary  port  and  sanitary  regula- 
tions. 

§38.  Same:  Right  of  innocent  passage.  The  juris- 
diction of  the  riparian  state  is,  however,  subject  to  cer- 
tain rights  of  innocent  passage.  "Wherever  the  territorial 
waters  are  so  located  that  passage  over  them  is  either 
necessary  or  convenient  for  the  navigation  of  the  open 
sea,  as  in  the  case  of  marginal  waters,  the  ships  of  the 
world  have  the  right  of  free  passage  over  them.  This 
rule  is  the  result  of  the  tremendous  benefit  to  the  merchant 
ships  of  the  world,  resulting  from  the  free  use  of  the 
ocean  as  a  means  of  transportation.  That  warships  en- 
joy the  same  right  has  been  claimed  and  denied,  though 
common  practice  favors  the  existence  of  the  right.  The 
law  is  uncertain  on  the  matter  and  the  authorities  are 
in  conflict. 

§  39.  Jurisdiction  over  vessels  on  high  seas  and  in  for- 
eign ports.  A  state  has  jurisdiction  over  its  citizens  and 
their  property  upon  the  high  sea.  The  reason  for  this  is 
obvious.    It  is  important  that  all  persons  and  property 


38  INTERNATIONAL  LAW 

upon  the  high  sea  be  subjected  to  some  authority,  and  it 
seems  equally  obvious  that  the  state  of  their  allegiance 
has  first  claim  to  such  jurisdiction.  The  nationality  of 
vessels  and  of  persons,  therefore,  will  determine  what 
state  shall  have  jurisdiction  over  them  when  outside  of 
territorial  waters.  But  when  they  enter  a  foreign  port, 
they  then  enter  the  jurisdiction  of  the  foreign  state.  But 
even  here  they  are  not  entirely  subject  to  the  foreign 
jurisdiction,  for  it  is  a  practice  of  most  nations  not  to 
interfere  in  affairs  concerning  only  those  on  board  the 
ship  and  which  do  not  disturb  the  peace  and  order  of  the 
port,  leaving  all  such  cases  to  the  jurisdiction  of  the  ship. 
England  follows  a  contrary  rule,  but  is  clearly  in  the  min- 
ority. The  jurisdiction  of  the  state  over  its  ships  on  the 
high  seas  extends  to  all  things  and  persons  on  such  ships, 
and  is  exclusive  except  as  to  foreigners,  where  there  is 
generally  held  to  be  concurrent  jurisdiction  between  the 
nations  involved  (24).  A  state  has  absolute  jurisdiction 
over  its  public  vessels  upon  the  high  seas  or  in  foreign 
ports  or  territorial  waters,  the  exemption  from  the  local 
laws  of  riparian  states  being  due  to  the  fact  that  such 
public  vessels  represent  the  sovereignty  and  independ- 
ence of  their  states,  and  to  considerations  of  mutual 
convenience. 

§  40.  Piracy.  Piracy  has  been  defined  as  ''every  un- 
authorized act  of  violence  against  persons  or  goods  com- 
mitted on  the  open  sea,  either  by  a  private  vessel  against 
another  vessel,  or  by  a  mutinous  crew  or  passengers 


(24)     Hall,  253-5. 


GENEEAL  PRINCIPLES  39 

against  their  own  vessel"  (25).  The  absence  of  au- 
thority of  any  state  which  may  be  held  responsible  for  the 
action  of  its  subjects  is  one  of  the  requisites  of  piracy. 
Consequently,  privateers,  sent  out  by  revolutionary  or- 
ganizations whose  belligerency  has  been  recognized,  can- 
not be  treated  as  pirates.  "When  their  belligerency  has 
not  been  recognized,  it  is  perhaps  proper  for  the  state 
against  whom  war  is  being  waged  to  consider  such  ex- 
peditions piratical,  but  it  is  obviously  not  proper  for 
other  states  so  to  treat  them,  since  their  purpose  is  politi- 
cal, and  their  hostilities  are  not  directed  against  the  com- 
merce of  other  states.  It  is  within  the  jurisdiction  of 
every  nation  to  punish  piracy  upon  the  high  sea,  and 
international  law  allows  the  punishment  to  be  capital,  al- 
though the  municipal  law  of  any  state  may  prescribe  a 
less  severe  penalty. 

§  41.  Fisheries.  For  many  years  the  question  of  ap- 
propriating the  right  of  fisheries  in  the  high  seas  has 
been  disputed,  and  was  finally  denied  in  the  seal  fishing 
controversy  between  England  and  the  United  States.  It 
may  now  be  considered  as  well  established  that  fishing 
in  the  open  sea  is  free  to  all,  and  that  each  state  possesses 
the  exclusive  rights  to  the  fisheries  within  its  territorial 
waters  (26).  Jurisdiction  over  the  high  seas  has  been  ex- 
ercised by  some  states  by  extending  the  regulations  re- 
garding revenue  and  sanitary  laws  beyond  the  three  mile 
limit.    The  right,  however,  has  been  frequently  denied 


(25)  1  Oppenheim,  326. 

(26)  Proceedings  of  First  Seal  Arbitration,  1893. 

Vol.  X— 5 


40  INTEENATIONAL  LAW 

by  writers  and  was  denied  by  the  United  States  Supreme 
Court  in  the  case  of  Eose  v.  Himely  (27). 

Section  3.    Personal  Jurisdiction. 

§42.  Nationality  by  birth.  Tlie  question  of  one's  citi- 
zenship or  nationality  is  primarily  a  question  of  mu- 
nicipal law.  It  involves  the  question  of  allegiance  and 
protection  between  the  person  and  the  state.  Interna- 
tional law  is  mainly  concerned  in  the  matter  of  nation- 
ality in  cases  where  the  question  of  protecting  citizens  in 
foreign  countries  is  raised.  It  is  a  fixed  rule  in  interna- 
tional law  that  a  state  cannot  impose  its  nationality  upon 
a  person  that  is  clearly  a  subject  of  another  state,  and 
cannot,  therefore,  in  such  a  case  demand  the  right  of 
l)rotecting  him  nor  compel  him  to  render  the  duties  of 
citizenship.  The  difficulties  of  the  question  arise  from 
the  conflict  of  laws  among  the  nations  as  to  who  are  their 
citizens,  that  being  a  question  which  each  state  has  a 
right  to  determine,  subject  to  the  restrictions  above  men- 
tioned. The  laws  of  practically  ;jvery  state  provide  that 
children  born  in  the  state,  of  which  their  parents  are  citi- 
zens, are  citizens  of  That  state.  It  is  the  question  of 
foreign  born  cliildren  that  gives  difficulty.  Most  states 
follow  the  rule  of  the  jus  languinis,  which  is  to  the  ef- 
fect that  children  born  abroad  should  receive  the  nation- 
ality of  their  parents.  Most  states  following  this  rule, 
however,  make  the  provision  that  children  of  foreign  pa- 
rents born  within  their  territory,  shall,  upon  attaining 
their  majority,  have  the  right  to  elect  their  allegiance 


(27)     4  CraTioh.  241. 


GENERAL  PEINCIPLES  41 

within  the  year.  Other  countries  follow  the  jus  soli, 
maintaining  that  the  place  of  birth  determines  the  citi- 
zenship of  the  child.  The  United  States  and  England 
have  provi-sions  based  upon  both  the  jus  sanguinis  and  the 
jus  soli.  A  child  born  of  Swiss  parents  in  the  United 
States  would  be  a  Swiss  subject  under  the  Swiss  laws, 
and  a  subject  of  the  United  States  under  their  laws,  which 
is  only  one  example  of  the  many  conflicts  which  occur  in 
the  laws  governing  nationality.  A  person  may  acquire 
citizenship  in  the  United  States  by  being  born  on  Ameri- 
can soil,  or  of  American  parentage  abroad,  or  by  being 
an  inhabitant  of  territory  which  is  made  a  part  of  the 
United  States,  or  by  complying  with  the  naturalization 
laws  of  the  country. 

§  43.  Expatriation.  Most  of  the  international  con- 
flicts that  have  arisen  concerning  citizenship  resulted 
from  the  denial  of  the  right  of  expatriation.  This  was 
one  of  the  chief  causes  of  our  war  of  1812.  England  in- 
sisted that  her  subjects  could  not  sever  their  allegiance 
from  her  without  her  consent,  and  therefore  the  fact  of 
their  naturalization  in  the  United  States  did  not  remove 
them  from  their  allegiance  and  duty  to  the  British  gov- 
ernment, and  she  insisted  upon  the  right  to  search 
American  ships  and  impress  into  the  British  service  nat- 
uralized American  citizens.  Similar  questions  have 
arisen  in  connection  with  the  subjects  of  Germany  be- 
coming naturalized  in  the  United  States,  and,  upon  re» 
turning  to  their  native  land,  being  compelled  to  render 
military  service.  The  United  States  contended  at  the 
time  and  has  since  made  treaties  to  the  same  effect,  that 


42  INTEENATIONAL  LAW 

when  such  citizens  return  to  their  native  land  they  could 
be  held  for  any  liability  or  military  duty  which  accrued 
before  the  date  of  the  emigration,  but  not  for  any  that 
accrued  after  such  date  (28).  Similar  treaties  have  been 
made  between  other  nations.  England  by  the  naturaliza- 
tion act  of  1870  granted  the  right  of  expatriation,  and 
recognized  the  naturalization  of  her  subjects  abroad. 
There  is  no  rule  of  law  by  which  these  conflicts  can  be  ad- 
justed. For  the  future  as  in  the  past,  they  will  have  to 
be  solved  as  questions  of  international  comity  and  con- 
ventional right. 

§  44.  Status  of  aliens  who  have  de  clared  intention  of  ex- 
patriation. It  is  generally  held  that  the  right  to  protect  a 
citizen  does  not  accrue  until  the  citizenship  of  the  person 
is  completed.  In  the  case  of  Martin  Kostza,  a  foreigner 
domiciled  in  the  United  States  who  had  declared  his  in- 
tention to  become  a  citizen  there,  the  United  States  de- 
manded the  right  of  protecting  him  on  the  ground  that 
domicile  confers  a  national  character,  although  he  was 
not  a  citizen  by  the  laws  of  the  United  States.  This  at- 
titude has  been  severely  criticised  and  it  seems  justly  so. 
By  their  own  laws  he  was  not  a  citizen,  and  therefore 
it  would  follow  that  they  had  no  right  to  protect  him 
against  the  claims  of  another  country  (29).  The  declara- 
tion to  become  a  citizen,  if  accompanied  with  the  enjoy- 
ment of  some  of  the  privileges  of  citizenship  does,  how- 
ever, confer  upon  such  citizens  certain  duties  of  citizen- 
ship.   Thus,  during  the  American  Civil  war,  the  United 


(2S)     Treaties  of  the  U.  S.,  43. 
(29)     Wilson  and  Tucker,  12S-31. 


GENERAL  PEINCIPLES  43 

States  exacted  military  service  of  sncli  persons,  giving 
to  the  persons  the  option  of  rendering  the  service  or  of 
giving  up  the  enjoyment  of  their  privileges  and  leaving 
the  country.  England  conceded  the  right  of  the  United 
States  to  exact  such  service  (30).  A  state's  jurisdiction 
may  be  extended  to  its  citizens  abroad,  but  it  cannot  en- 
force such  jurisdiction  within  the  territory  of  another 
state.  It  must  await  the  return  of  the  citizen  to  its  own 
territory  to  inflict  any  punishment  or  enforce  its  decree. 

§  45.  Jurisdiction  over  aliens.  Aliens,  like  all  other 
persons  within  the  territory  of  a  state,  are  bound  to  obey 
the  laws  of  the  land  and  are  subject  to  its  civil  and  crim- 
inal jurisdiction.  The  state  may  require  aliens  to  ren- 
der such  military  service  as  may  be  necessary  to  ward  off 
an  immediate  or  sudden  danger,  as  repelling  an  invasion 
or  quieting  a  mob,  but  it  cannot  compel  them  to  enter 
the  regular  military  service,  or  to  render  service  in  gen- 
eral wars.  The  rights  of  aliens  to  enjoy  such  privileges 
as  the  holding  of  property,  freedom  of  speech  and  wor- 
ship, etc.,  are  subject  to  the  local  laws.  While  a  civilized 
state  would  never  attempt  to  maintain  the  right  of  ab- 
solute exclusion  of  aliens,  yet  such  would  seem  to  be 
within  their  strict  legal  rights.  The  right  of  expulsion 
and  conditional  admission  is  generally  admitted  and 
maintained  (31). 

§  46.  Foreign  sovereigns.  The  sovereign  of  a  country, 
when  traveling  in  another  state,  has  almost  complete  im- 
munity from  the  local  jurisdiction  of  the  state.    While 


(30)  Hall,  242-5. 

(31)  Wilson  and  Tucker,  131-33. 


44  INTEENATIONAL  LAW 

this  custom  originated  in  acts  of  international  courtesy 
and  in  the  theory  that  no  sovereign  may  exercise  au- 
thority over  another,  it  is  maintained  as  a  rule  of  inter- 
national law  today  because  of  its  mutual  convenience  to 
the  several  states.  To  interfere  with  the  sovereign  would 
doubtless  be  to  interfere  with  the  administration  of  state 
affairs.  His  exemption  extends  to  all  members  of  his 
suite.  He  is  exempt  from  a  payment  of  taxes  and  the 
performance  of  duties,  or  from  any  police  or  administra- 
tive regulations  of  the  local  state.  While  his  house  can- 
not be  entered  by  state  authorities,  he  is,  nevertheless, 
prohibited  from  granting  the  right  of  asylum  to  criminals 
not  members  of  his  suite,  and,  should  he  do  so,  his  ex- 
pulsion from  the  country  might  properly  follow.  The 
sovereign  cannot  perform  acts  of  governmental  sover- 
eignty within  tlie  local  state,  nor  even  try  members  of  his 
own  suite  for  offenses  committed  within  his  house.  Only 
minor  acts  of  personal  sovereignty  are  allowed.  He  and 
his  suite  are  bound  to  commit  no  acts  against  the  safety 
and  good  order  of  the  community,  but,  should  they  do  so, 
they  could  only  be  expelled  from  the  country  or  subjected 
to  such  confinement  as  would  be  necessary  in  self-defense. 
They  could  not  be  tried  or  punished  by  the  local  state. 

§  47.  Diplomatic  agents.  Diplomatic  agents  are 
granted  immunity  from  both  the  criminal  and  civil  juris- 
dictions of  the  states  to  which  they  are  duly  accredited. 
Originally  this  immunity  was  granted  because  of  the  dig- 
nity of  the  office,  the  agent  being  supposed  to  represent 
the  sovereignty  of  his  state.  The  same  immunities 
granted  to  his  sovereign  were  accorded  to  the  agent.  To- 


GENERAL  PEIXCIPLES  45 

day,  however,  the  imiminity  of  agents  is  placed  upon  the 
basis  of  necessary  convenience,  since  his  subjection  to  lo- 
cal jurisdictions  might  interfere  with  official  duties,  or 
make  him  dependent  upon  the  good  will  of  the  local  gov- 
ernment or  its  officers.  Because  of  this  and  for  the 
further  reason  that  the  immunity  of  agents  has  been  a 
subject  of  continual  adjudication,  while  but  few  cases 
concerning  the  immunity  of  sovereigns  have  ever  arisen, 
the  law  concerning  diplomatic  immunity  is  better  devel- 
oped and  doubtless  more  limited  than  the  immunity  of 
the  sovereign.  The  exemption  from  criminal  jurisdic- 
tion means  that  the  agent  cannot  be  arrested  or  tried  for 
crime,  but  does  not  mean  that  he  is  at  liberty  to  violate 
the  law  with  impunity,  for  he  is  under  an  undoubted  duty 
to  obey  the  local  laws.  If  he  does  not,  complaint  must  be 
made  to  bis  home  government  as  the  only  means  of  re- 
dress ;  except  in  serious  offenses  and  especially  those  di- 
rected against  the  state,  where  he  may  be  placed  in  re- 
straint if  necessary  to  prevent  further  violation,  and,  in 
some  cases,  expelled  from  the  country  without  waiting  for 
his  recall.  He  can  never  be  imprisoned  as  a  punitive 
measure,  however,  nor  can  he  be  tried  or  punished  by 
the  local  authorities  (32).  In  the  case  of  Prince  Cella- 
mare  (33),  the  Spanish  ambassador  at  Paris,  he  was  ar- 
rested and  conducted  across  the  frontier  for  participating 
in  the  conspiracy  to  place  Philip  V  at  the  head  of  France. 
Gyllenorg's  Case  (34),  held  that  an  ambassador,  who 
conspired  to  overthrow  the  government  to  which  he  had 


(32)  Mendoza's  Case,  2  Ward's  Law  of  Nations,  522. 

(33)  1  Martens,  Causes  Celebres,  282. 

(34)  2  Ward's  Laws  of  Nations,  54S. 


46  IXTEEXATIONAL  LAW 

been  accredited,  may  be  arrested  and  his  papers  seized. 
The  propriety  of  seizing  a  diplomat's  papers  has  been 
seriously  questioned,  unless  it  be  for  the  mere  purpose  of 
turning  them  over  to  the  agent's  government. 

§  48.  Same  (continued).  The  same  rules  governing  the 
sovereign  in  regard  to  the  immunity  of  his  house  and 
the  right  of  asylum  apply  to  the  residence  of  the  diplo- 
mat. The  agent  also  enjoys  civil  immunity.  He  cannot 
be  sued,  compelled  to  testify,  or  perform  other  civil  du- 
ties which  might  interfere  with  his  official  position,  nor 
is  he  subject  to  direct  taxation.  He  is,  however,  subject 
to  such  sanitary  and  police  regulations  as  are  necessary 
to  the  safety  and  health  of  the  community.  The  agent 
may  voluntarily  surrender  himself  to  the  civil  jurisdic- 
tion of  the  state  for  one  purpose  or  another,  and  this  is 
sometimes  done.  All  these  immunities  extend  to  the 
agent  and  to  the  members  of  his  suite,  from  the  time  he 
enters  the  country  with  his  credentials  until  a  reasonable 
time  after  the  termination  of  his  mission.  Similar  im- 
munity is  granted  to  him  by  third  states,  through  which 
he  passes  on  his  way  to  and  fro,  for  a  reasonable  time  in 
which  to  make  the  journey. 

§  49.  Foreign  armed  forces.  When  military  forces 
cross  the  territory  of  another  state,  it  is  generally  done 
under  treaty  stipulations,  since  the  right  of  passage  of 
such  forces  is  now  generally  denied  except  as  a  treaty 
right.  In  such  treaties,  the  time  and  route  of  passage  is 
generally  prescribed.  However,  nothing  ordinarily  is 
said  of  the  right  of  jurisdiction  over  the  passing  troops, 
and,  in  the  absence  of  any  provisions  to  the  contrary,  com- 


GENEEAL  PEINCIPLES  47 

plete  immunity  over  the  troops  is  implied.  It  is  neces- 
sary and  essential  that  the  jurisdiction  of  the  invading 
army  over  its  own  troops  should  be  exclusive,  for,  to  al- 
low the  exercise  of  foreign  jurisdiction  over  them,  would 
be  incompatible  with  the  efficiency  and  discipline  of  the 
army.  The  commander  might  as  a  matter  of  concession 
turn  over  any  offenders  against  the  citizens  of  the  in- 
vaded state,  but  there  should  be  no  right  to  demand  the 
relinquishment  of  such  jurisdiction  except  perhaps  in  the 
most  aggravated  cases.  Relief  should  be  sought  through 
diplomatic  channels. 

§  50.  Public  ships.  The  public  vessels  of  a  state  in  the 
territorial  waters  of  another  nation  are  exempt  from  its 
territorial  jurisdiction.  In  the  case  of  Exchange  v.  Mc- 
Fadden  (35),  the  court  declared  that  a  suit  against  a 
French  public  vessel  could  not  be  maintained  in  the  courts 
of  the  United  States,  regardless  of  the  merits  of  the  con- 
troversy, since  such  would  be  inconsistent  with  the  com- 
mon interest  of  sovereigns  which  impel  them  to  mutual 
intercourse  and  the  interchange  of  good  offices.  The  crew 
and  other  persons  on  board  such  ships,  however,  are 
bound  by  the  laws  of  the  port,  except  in  regard  to  such 
things  as  begin  and  end  upon  the  boat,  or  concern  only  its 
internal  affairs ;  but,  when  persons  within  the  ship  violate 
the  laws  of  the  port,  or  commit  crimes  and  do  other  acts 
which  take  effect  outside  of  the  boat,  the  local  state  has 
no  right  to  interfere  with  the  vessel  or  the  people  upon 
it,  but  must  look  for  redress  to  the  government  to  whom 
the  vessel  belongs,  except  in  cases  of  great  stress  where 


(35)     7  Cranch,  110. 


48  INTEENATIONAL  LAW 

the  right  of  self-defense  may  justify  the  forceful  expul- 
sion of  the  ship  from  territorial  waters.  Administrative 
rules  of  the  port,  such  as  quarantine  regulations,  must  be 
respected,  except  where  there  is  a  well-established  custom 
to  the  contrary  which  forms  the  exception.  If  the  per- 
sons on  the  boat  or  the  members  of  the  crew  go  outside  of 
the  boat  or  its  tenders,  they  are  then  completely  subject 
to  the  jurisdiction  of  the  local  state.  The  captain  is  not 
individually  exempt  when  off  the  boat,  except  in  regard 
to  acts  done  in  his  official  capacity.  While  asylum  may 
be  granted  to  political  offenders  if  they  ask  for  it,  it  is 
illegal  to  grant  protection  to  criminal  refugees,  and  they 
should  be  delivered  over  to  the  authorities  of  the  port. 

§  51.  Merchant  vessels.  Merchant  vessels  in  territorial 
waters  of  another  state  by  strict  legal  theory  are  subject 
entirely  to  the  jurisdiction  of  that  state,  though  there  is 
a  general  tendency  to  follow  what  is  known  as  the  French 
rule,  which  is,  that  the  local  government  will  not  take 
jurisdiction  over  foreign  merchant  vessels  in  her  ports, 
except  where  the  peace  and  dignity  of  the  government 
or  the  tranquillity  of  the  port  should  be  involved.  This 
rule  has  been  adopted  by  many  states  by  treaty,  and  con- 
forms to  the  opinion  of  most  writers  and  the  prevalent 
practice  among  the  states,  England  excepted.  In  the 
Wildenlms  Case  (36)  the  Supreme  Court  of  the  United 
States  held  that  where  a  mere  quarrel  or  fight  in  the  boat 
between  seamen  would  not  be  sufficient  to  give  the  local 
state  jurisdiction  under  the  French  rule,  yet  a  murder 
committed  upon  the  boat  would  so  affect  the  tranquillity 

(3G)     120  u.  s.  1. 


GENERAL  PEIXCIPLES  49 

of  the  port  as  to  justify  the  exercise  of  local  jurisdiction. 
However,  there  is  no  immunity  on  board  a  merchant  ves- 
sel, and  it  may  be  boarded  for  the  purpose  of  enforcing 
the  law  or  capturing  criminal  or  political  refugees. 

§  52.  Consular  jurisdiction.  In  countries  not  yet  fully 
admitted  to  the  family  of  nations  and  where  the  standards 
of  law  and  morals  are  widely  different  from  those  of 
fully  civilized  nations,  as  in  China  and  Egypt,  it  is  usual 
for  states  to  establish  what  are  known  as  consular  courts, 
having  jurisdiction  over  all  cases  within  that  country  to 
which  one  of  their  citizens  may  be  a  party,  except  where 
the  other  party  is  also  a  citizen  of  a  fully  sovereign  state, 
in  which  case  the  matter  of  jurisdiction  between  them  is 
determined  by  treaty.  These  courts  are  presided  over 
by  consuls,  who,  in  such  cases,  are  invested  with  special 
judicial  powers.  They  are  generally  established  by  treaty 
relations.  Appeals  lie  to  the  diplomatic  officers  and  to 
the  courts  of  the  various  states. 

§  53.  Extradition.  It  has  been  urged  from  time  to 
time  that  international  law  makes  it  the  duty  of  states 
to  surrender  to  foreign  nations  individuals  within  theit 
jurisdiction,  who  have  been  accUsed  of  criminal  offenses 
within  the  territory  of  the  foreign  state.  The  great 
weight  of  authority  and  practice  is  against  such  conten- 
tion, however;  and,  in  its  place,  most  nations  have 
adopted  treaty  stipulations  providing  for  extradition. 
These  treaties  generally  provide  in  detail  what  offenses 
may  be  made  the  basis  of  extradition  proceedings,  regu- 
late the  mode  of  procedure,  and  some  treaties  provide  ex- 
pressly that  parties  extradited  cannot  be  tried  for  any 


50  INTEENATIONAL  LAW 

other  offense  than  the  one  for  which  they  were  extradited, 
nntil  the  lapse  of  a  reasonable  time  after  the  trial.  This 
rule  has  been  adopted  by  the  United  States  regardless  of 
treaty  stipulations  (37). 

§  54.  Same:  Political  offences.  Most  treaties  make 
an  exception  of  political  offenders,  and  one  of  the  most 
vexing  questions  raised  in  regard  to  extradition  is  the 
determination  of  what  is  a  political  as  distinguished  from 
a  criminal  offense.  Where  a  person,  belonging  to  a  re- 
volt which  had  attained  the  dimensions  of  a  war  carried 
on  for  political  purposes,  killed  a  man  as  an  incident  in 
the  revolt  and  with  a  bona  fide  intent  of  furthering  its 
political  ends,  it  was  held  to  be  a  political  and  not  a 
criminal  offense,  and  therefore  that  he  could  not  be  ex- 
tradited (38).  Perhaps  no  better  definition  can  be  found 
than  the  one  suggested  by  Lawrence,  that  political  of- 
fenses are  ''acts  done  for  political  objects  which  would 
be  allowed  by  the  laws  of  war,  were  the  relation  of  belli- 
gerency established  between  the  doers  of  them  and  the 
states  against  which  they  are  done"  (39). 


(37)  IT.  S.  V.  Rauscher,  119  U.  S.  407. 

(38)  In  re  Castioni  [1891],  1  Q.  B.  149. 

(39)  Lawrence,  238. 


PEACE  53 


CHAPTER  IV. 

RELATIONS  BETWEEN  STATES  IN  PEACE. 

Secticxn"  1.    Diplomatic  Relations. 

§  55.  Diplomatic  agents  and  their  functions.  The  po- 
litical relations  between  states  are  generally  carried  on 
through  diplomatic  agents,  acting  under  the  authority  of 
that  branch  of  the  government  which  by  its  local  consti- 
tution is  intrusted  with  the  management  of  foreign  af- 
fairs. In  the  United  States  the  control  of  foreign  rela- 
tions is  delegated  to  the  executive  department  of  the  gov- 
ernment, the  department  of  state  corresponding  to  the  de- 
partment of  foreign  affairs  generally  found  in  other  na- 
tions. Among  the  duties  of  the  diplomatic  agent  are  the 
furnishing  of  his  state  with  all  information  concerning 
matters  of  international  interest  regarding  the  state  to 
which  he  is  accredited,  and  the  protection  of  the  interests 
of  his  fellow  citizens  while  in  that  state.  In  order  to  at- 
tend to  his  duties  most  effectively,  he  is  bound  by  every 
consideration  of  honor  and  duty  scrupulously  to  abstain 
from  all  interference  in  the  internal  affairs  of  the  local 
state. 

§  56.  Diplomatic  ceremonial.  Diplomatic  ceremonial 
is  very  elaborate  and  complex,  especially  in  European 
countries,  and  a  breach  of  any  of  its  long  standing  tradi- 


52  INTEKXATIONAL  LAW 

tions  might  be  considered  an  insult  to  tlie  dignity  of  the 
power  concerned.  To  help  simplify  matters,  and  with 
the  idea  of  fixing  a  definite  course  of  procedure  which  a 
state  may  follow  without  giving  offense  to  anyone,  the 
Congress  of  Vienna,  in  1815,  adopted  a  classification  of 
public  ministers,  W'ho  rank  in  the  following  order:  am- 
bassadors, legartes,  and  nuncios;  envoys  extraordinary 
and  ministers  plenipotentiary,  or  other  persons  ac- 
credited to  sovereigns;  ministers  resident;  charges  d'af- 
faires. The  classification  is  of  little  importance  except 
for  ceremonial  purposes.  The  title  which  the  agent  of  a 
state  bears  depends  upon  municipal  law  entirely,  the  cus- 
tom being  for  each  nation  to  give  the  same  title  to  its 
agent  as  is  held  by  the  agent  it  receives  (1) 

§  57.  Acceptance  of  diplomatic  agents.  The  conduct  of 
international  relations  being  entirely  necessary  for  those 
states  living  within  the  pale  of  international  law,  there  is 
said  to  be  a  legal  obligation  resting  upon  nations  to  re- 
ceive the  diplomatic  representatives  from  foreign  coun- 
tries. But  this  duty  does  not  extend  to  compel  the  recep- 
tion of  permanent  envoys,  and  there  are  exceptions  to  the 
duty  to  receive  special  or  temporary  agents.  Permanent 
envoys  not  being  necessary  to  inter-state  relations,  they 
are  not  required  by  law.  Temporary  agents,  on  the  other 
hand,  are  necessary  from  time  to  time,  and  their  recep- 
tion by  the  state  is  therefore  a  matter  of  legal  duty,  with 
certain  exceptions.  Where  the  sovereignty  of  the  state 
sending  the  agent  is  doubtful,  as  in  the  case  of  civil  war 
when  both  factions  claim  the  sovereignty,  and  where' 


(1)     Opinions  of  Att.  Gen.  74. 


PEACE  53 

therefore  a  reception  of  the  agent  would  amount  to  the 
recognition  of  his  faction,  the  state  may  properly  decline. 
The  same  has  been  held  where  the  agent  represents 
claims,  which  the  receiving  state  does  not  regard  as  com- 
patible with  its  dimity  or  interests  to  consider. 

§  58.  Refusal  to  accept  particular  individuals  as  agents. 
But  the  refusal  to  receive  an  agent  must  not  be  con- 
fused with  the  refusal  to  receive  a  particular  individual 
as  the  agent  of  any  state.  When  the  individual  assigned 
as  the  agent  to  another  nation  is  found  to  hold  views  con- 
trary to  those  in  effect  in  the  established  regime,  that  in- 
dividual may  properly  be  refused  acceptance.  Thus  Mr. 
Keily,  the  United  States  minister  to  Italy,  was  refused  by 
that  country,  because  in  1871  he  had  protested  against  the 
annexation  of  the  Papal  States.  However,  when  the 
ground  of  the  objection  is  trivial,  it  is  generally  held  that 
the  sending  state  does  not  have  to  acquiesce  in  the  re- 
jection. When  Austria  refused  Mr.  Keily  on  the  ground 
that  his  wife  was  a  Jewess,  President  Cleveland  declined 
to  cancel  the  appointment,  and  consequently  affairs  were 
left  for  some  time  in  the  hands  of  the  secretary  of  the 
legation  (2).  It  may  be  laid  down  as  a  general  rule  that 
a  state  may  refuse  to  accept  a  particular  individual  as 
the  agent  of  a  foreign  country,  whenever  there  is  any 
reasonable  or  substantial  ground  why  he  should  be  per- 
sonally objectionable  to  the  sovereign  of  the  state.  It  is 
customary,  therefore,  for  a  state  to  make  secret  inquiries 
concerning  the  acceptability  of  the  individual  to  be  ap- 
pointed as  its  agent  (3). 

(2)  Wharton's  Digest,  601. 

(3)  Bluutschli,  ser  16S. 


54  INTERNATIONAL  LAW 

§59.  Commencement  of  diplomatic  missions.  The 
permanent  mission  of  a  diplomatic  agent  begins  when 
proper  credentials  have  been  presented  to  and  received 
by  the  accrediting  government.  A  temporary  mission 
commences  with  the  presentation  and  acceptance  of  the 
proper  credentials  by  the  agents  of  the  other  govern- 
ments whom  he  is  intended  to  meet.  The  credentials  of 
the  agent  consist  of  'betters  of  credence"  and  ''full  pow- 
ers ' '.  The  letter  of  credence  gives  the  name  of  the  bearer 
and  his  rank,  and  bespeaks  credit  for  communications 
made  by  him  in  the  name  of  his  government.  When  the 
mission  of  the  agent  is  special  or  temporary,  or  where  a 
permanent  agent  is  entrusted  with  authority  to  negotiate 
for  his  government,  he  must  be  furnished  with  ''full 
powers"  of  negotiation,  which  may  be  contained  in  his 
letter  of  credence  or  conferred  separately  by  letters  pa- 
tent, describing  the  nature  and  scope  of  his  authority. 

§  60.  Termination  of  diplomatic  missions.  ' '  The  mis- 
sion of  a  diplomatic  agent  is  terminated  by  his  recall,  by 
his  dismissal  by  the  government  to  which  he  is  accredited, 
by  his  departure  on  his  own  account  upon  a  cause  of  com- 
plaint stated,  by  war  or  by  the  interruption  of  amicable 
relations  between  the  country  to  which  he  is  accredited 
and  his  own,  by  the  expiration  of  his  letter  of  credence 
if  it  be  given  for  a  specific  time,  by  the  fulfilment  of  the 
specific  object  for  which  he  may  have  been  accredited, 
and,  in  the  case  of  monarchial  countries,  by  the  death  of 
the  sovereign  who  has  accredited  him"  (4) 

§  61.    Grounds  for  dismissing  envoys.    The  right  of  a 


(4)     Hall,  305. 


PEACE  55 

a  state  to  dismiss  envoys  accredited  to  it  or  to  demand 
their  recall  from  the  sending  state  is  much  disputed.  As 
a  matter  of  courtesy,  a  nation  should  not  dismiss  an  agent 
except  upon  serious  grounds,  and,  where  it  does  so,  as- 
signing reasons  wliich  are  fraudulent  or  trivial,  it  may 
well  be  taken  as  a  covert  insult  to  the  sending  nation.  A 
country  need  not  recall  its  agent,  therefore,  unless  it  is 
satisfied  that  the  **  reasons  alleged  are  of  sufficient  gravity 
in  themselves.'*  Offensive  conduct  towards  the  state  or 
interference  in  its  internal  affairs  would  seem  to  be  a 
sufficient  justification  for  dismissing  an  agent  or  demand- 
ing his  recall.  The  United  States,  however,  will  recall 
its  representatives  upon  less  serious  grounds,  and  has 
demanded  the  same  from  other  states,  altho  its  attitude 
has  been  severely  criticized.  In  1871  the  recall  of  the  Rus- 
sian minister  to  the  United  States  was  demanded  on  the 
grounds  of  undesirable  personal  conduct,  the  matter  be- 
ing finally  compromised  by  postponing  the  recall  (5). 
When  in  1848  the  British  minister  to  Spain  was  dismissed, 
after  the  refusal  of  the  British  government  to  recall  him 
upon  being  charged  with  being  opposed  to  the  party  in 
power,  England  retaliated  by  dismissing  the  Spanish 
minister,  Spain  having  made  no  serious  attempt  to  jus- 
tify her  action  (6).  The  conclusion  to  be  drawn  from 
these  and  similar  cases  is  that  the  dismissal  of  an  ageiit 
or  a  demand  for  his  recall,  if  not  justified  by  evidence  of 
a  serious  offense,  is  at  least  an  unfriendly  if  not  an  il- 
legal act  (7). 


(5)  1  Wharton's  Digest,  84. 

(6)  State  Papers,  1848. 

(7)  Hall,  306-8. 


56  INTEENATIONAL  LAW 

§  62.  Immunity  of  diplomatic  agents.  Tliis  is  discussed 
in  §§  47-48,  above,  to  which  the  reader  is  referred. 

§  63.  Consular  agents.  Consuls  are  persons  appointed 
by  a  state  to  reside  in  a  foreign  country,  with  the  per- 
mission of  the  latter,  for  the  purpose  of  looking  after  the 
interests  of  the  appointing  state,  especially  interests  of 
a  commercial  nature.  The  general  classification  of  con- 
suls includes  consuls-general,  consuls,  vice  consuls,  and 
consular  agents.  Their  more  important  duties  are  to 
look  after  the  commercial  interests  of  the  country  they 
represent;  to  see  that  laws  and  treaties  with  reference 
to  the  subjects  and  commerce  of  their  state  are  properly 
carried  out ;  to  exercise  notarial  functions  for  subjects  of 
their  country,  as  in  the  authentication  of  births,  deaths, 
etc. ;  and  to  exercise  disciplinary  jurisdiction  over  crews 
of  the  vessels  of  their  own  states,  though  not  to  the  ex- 
clusion of  the  local  jurisdiction.  The  appointment  to  the 
office  of  consul  is  by  commission  or  patent,  which  is  com- 
municated to  the  government  to  which  the  agent  has 
been  assigned.  If  acceptable  to  the  receiving  state,  an 
exequatur  will  be  issued  giving  him  the  authority  to  per- 
form the  duties  of  his  office  and  guaranteeing  to  him  the 
rights  belonging  to  the  office.  The  sending  of  a  consul 
to  a  belligerent  state  does  not  involve  a  recognition  of 
that  state.  The  matter  of  consular  courts  in  certain  coun- 
tries has  already  been  discussed  (§  52,  above). 

§  64.  Same:  Immunity.  Consuls  are  municipal  and 
not  international  officers,  except  in  a  very  limited  sense. 
They  are  not  therefore  entitled  to  the  immunity  of  diplo- 
matic agents,  but,  being  the  representatives  of  a  state 


PEACE  57 

and  being  received  by  the  consent  of  the  state  to  wliich 
they  are  assigned,  international  law  does  allow  them 
such  protection  and  immunity  as  is  absolutely  necessary 
to  the  performance  of  their  duties,  including  the  inviola- 
bility of  the  papers  and  archives  of  the  consulate,  and 
exemption  from  arrest  for  political  purposes.  It  is  per- 
fectly clear,  however,  that  the  consular  agent  is  subject 
to  the  general  civil  and  criminal  jurisdiction  of  the  local 
state  (8).  For  illegal  and  improper  conduct,  a  consul 
may  be  punished  or  sent  from  the  country,  and  his  exe- 
quatur revoked  at  the  option  of  the  offended  country  (9). 

Section  2.  Treaties. 
§65.  Nature  and  classification  of  treaties.  Treaties 
may  be  defined  as  agreements  between  states  by  which 
existing  duties  and  obligations  are  modified  or  defined,  or 
new  duties  and  obligations  created.  Agreements  between 
a  state  and  a  private  individual,  or  between  a  state  and 
the  church,  or  agreements  by  sovereigns  or  sovereign  dy- 
nasties pertaining  to  their  individual  or  djmastic  claims 
to  the  sovereignty  of  a  state,  are  not  considered  treaties, 
since  the  relations  established  by  them  are  not  interna- 
tional in  their  character.  The  right  of  making  treaties  is 
one  of  the  essential  attributes  of  sovereignty,  and,  where 
the  right  does  not  exist,  or  exists  only  in  a  limited  de- 
gree, as  in  the  case  of  the  German  Confederation,  to  just 
that  extent  the  sovereignty  is  impaired.  Treaties  as  de- 
fined above  are  called  treaties  or  conventions.  These 
terms  are  many  times  used  interchangeably,  though  the 


(S)     Clark  v.  Crestica,  1  Tannt.  106. 
(9)     Coppell  V.  Hall,  7  Wall.  542. 


58  INTERNATIONAL  LAW 

latter  term  should  only  be  applied  to  agreements  which 
become  executed  upon  their  fulfillment,  the  effects  alone 
being  permanent,  as  boundary  conventions,  agreements  of 
cession,  etc.,  as  distinguished  from  agreements  which  reg- 
ulate the  future  obligations  and  actions  of  the  contracting 
parties.  There  are  several  forms  of  qualified  treaties 
which  should  be  defined.  Cartels  are  agreements  made 
between  belligerents,  generally  regulating  mutual  inter- 
course during  war,  such  as  arrangements  for  exchange 
of  jirisoners,  or  for  special  telegraph  or  postal  communi- 
cation and  similar  objects.  Such  agreements  are  made 
by  the  ranking  commander  of  the  military  forces,  and  do 
not  require  ratification.  Of  a  similar  nature  are  agree- 
ments for  the  cessation  of  hostilities  for  a  period  of  time, 
which  are  known  as  armistices  or  truces,  and  the  agree- 
ments determining  the  terms  upon  which  a  besieged  place 
will  surrender,  known  as  capitulations.  Such  agreements 
are  only  valid  when  the  officers  have  not  exceeded  their 
powers. 

§  66.  Negotiation  and  ratification.  The  treaty-making 
power  of  a  state  is  generally  vested  in  its  ruler  (10), 
though  in  the  making  of  treaties,  he  rarely  acts  in  person 
but  authorizes  agents  to  act  for  him.  These  agents  re- 
ceive written  commissions  known  as  ''full  powers,"  which 
authorize  them  to  negotiate  for  their  state.  In  addition 
to  this  they  generally  receive  specific  instructions  from 
their  government,  often  given  in  secrecy.  These  agents, 
acting  under  the  authority  given  them  by  their  respective 
states,  draw  up  the  treaty  and  affix  their  signatures,  but 


(10)     r.  S.  Cons.,  Art.  II,  sec.  2. 


PEACE  59 

such  action  does  not  conclude  the  treaty  finallj',  for  all 
treaties,  except  those  negotiated  by  the  sovereigns  them- 
selves and  such  qualified  treaties  as  cartels  or  capitula- 
tions, are  not  binding  until  they  receive  the  tacit  or  ex- 
press ratification  of  the  treaty-making  power.  The  older 
writers  contended  that  ratification  was  not  necessary, 
unless  the  agents  of  the  state  had  exceeded  the  scope 
of  their  authority.  But  the  magnitude  and  importance  of 
the  interests  involved  in  a  treaty  are  such  as  have  led 
to  the  adoption  of  the  rule,  that  a  state  cannot  be  legally 
bound  by  an  agreement,  though  made  by  its  authorized 
agents,  unless  the  sovereign  power  has  given  his  tacit 
or  express  approval.  In  fact,  most  modern  treaties  make 
the  provision  that  the  treaty  shall  not  take  effect  until 
ratified  by  the  treaty  making  power.  Nor  is  it  a  legal 
duty  of  a  state  to  ratify  the  acts  of  its  authorized  agents, 
though  considerations  of  good  faith  might  require  it  (11). 
Where  the  ratification  is  partially  a  legislative  act,  as  in 
the  United  States,  it  is  generally  conceded  that  there  is 
no  obligation  whatever  to  ratify,  since  the  ratifying  body 
has  had  nothing  to  do  with  the  instructions  and  authority 
given  to  the  negotiators  (12).  Upon  its  ratification  the 
treaty  takes  effect  from  the  date  of  the  signing,  unless 
special  provision  is  made  for  some  particular  date. 

§  67.  Validity  of  treaties.  Tlie  first  condition  essential 
to  the  validity  of  a  treaty  is  that  the  parties  interested 
must  have  the  international  capacity  to  contract.  They 
must  be  completely  independent  states,  or  at  least  have 


(11)  1  Oppenheim,  534,  535. 

(12)  Hall,  333. 


60  INTEENATIONAL  LAW 

complete  sovereignty  in  regard  to  those  things  which 
compose  the  subject  matter  of  the  treaty.  It  is  generally 
stated  that  the  agents  negotiating  the  treaty  must  have 
the  full  power  to  act,  but,  since  it  is  the  ratification  by 
the  sovereign  power  which  makes  the  treaty  binding, 
the  prior  authority  of  the  agent  is  not  material.  The 
free  consent  of  the  contracting  parties  is  generally  held 
to  be  necessary  to  the  validity  of  a  treaty.  This  applies 
to  the  agent  of  the  state  rather  than  to  the  state  itself.  If 
the  persons  invested  with  the  right  of  ratification  should 
ratify  under  personal  threats,  compulsion,  or  when  in  an 
intoxicated  condition,  so  that  there  would  be  an  absence 
of  the  element  of  consent,  the  treaty  would  be  invalid. 
This  does  not  mean,  however,  that  a  treaty  is  invalid  be- 
cause the  state  is  forced  to  give  unfavorable  terms  by 
means  of  military  conquest.  It  has  been  contended,  how- 
ever, that  where  a  state  is  thus  forced  into  a  treaty  to 
give  up  its  independence,  the  presumption  is  that  the 
state  could  never  freely  have  consented  to  such  a  treaty 
and  therefore  it  is  void.  This  doctrine  is  laid  down  by 
the  leading  writers  upon  the  subject  (14).  Finally, 
treaties  are  void  when  the  object  is  physically  impossi- 
ble, immoral,  or  illegal. 

§  68.  Implied  conditions  in  treaties.  A  treaty  becomes 
voidable  so  as  to  release  a  state  if  it  so  chooses,  when 
anything  that  formed  an  implied  condition  of  the  treaty 
is  substantially  altered.  Thus,  there  is  an  implied  condi- 
tion that  both  parties  will  abide  by  the  provisions,  and 
where  one  party  fails  to  do  so  in  any  material  way, 


(14)     Davis,  Elonients  of  International  Law,  227-9. 


PEACE  61 

the  other  state  is  no  longer  bound.  It  is  also  implied  that 
a  state  never  entered  into  any  agreement,  the  perform- 
ance of  which  would  cause  the  sacrifice  of  its  existence. 
Therefore,  a  state  could  not  be  expected  to  carry  out  its 
treaty  of  guarantee  for  instance,  if  so  doing  would  mean 
suicide.  Freedom  of  action  or  independence  is  another 
implied  condition  often  suggested,  and  therefore,  when  a 
state  bound  by  treaty  loses  its  freedom  in  respect  to 
those  things  which  form  the  subject  matter  of  the  treaty 
it  is  no  longer  bound.  When  the  ratification  of  the  treaty 
is  secured  through  fraud,  as  when  false  maps  are  used 
in  the  location  of  boundary  lines,  the  defrauded  state  can- 
not be  bound  against  its  will  (15). 

§  69.  Interpretation.  Treaties  should  be  interpreted 
according  to  equitable  rules,  in  an  effort  to  arrive  at  the 
spirit  rather  than  the  letter  of  the  agreement  and  to  give 
effect  to  the  common  intentions  of  the  contracting  par- 
ties. Many  times  ambiguities  arise,  and  in  such  cases 
there  are  a  few  rules  that  have  found  general  acceptance. 
Where  words  have  special  meanings  when  adopted  in 
treaties,  such  meanings  should  be  adopted.  No  construc- 
tion, however,  should  be  adopted  which  leads  to  an  ab- 
surdity or  to  incompatibility  with  principles  of  law. 
Where  the  terms  have  different  meanings  in  different 
states,  the  meaning  generally  accepted  in  the  state  where 
the  performance  is  to  take  place  should  control.  In 
cases  where  a  plain  meaning  is  wanting,  the  spirit  of  the 
whole  instrument  should  govern,  reasonable  construc- 
tions being  adopted  in  preference  to  merely  literal  inter- 


(15)     Hall,  350-8. 


62  INTERNATIONAL  LAW 

pretations.  A  treaty  cannot  be  so  construed  as  to  de- 
prive a  state  of  any  of  its  fundamental  rights,  except 
where  they  are  expressly  the  subject  of  the  agreememt. 
Where  rights  are  clearly  granted  by  a  treaty,  all  that  is 
necessary  to  secure  them  is  implied  in  the  instrument. 

§  70.  Same:  Conflicts  with  other  treaties.  Where  the 
ambiguity  results  from  a  conflict  between  provisions 
of  the  same  treaties  or  between  different  treaties, 
a  special  provision  will  always  take  precedence  over  a 
general  provision,  even  though  an  exception  is  made  to  a 
general  imperative  clause.  In  other  conflicting  provi- 
sions, the  one  having  the  greatest  penalty  attached,  or  the 
one  stated  with  most  precision,  or  the  one  of  the  most 
importance  will  prevail.  Where  two  treaties,  made  be- 
tween the  same  states  at  different  times  conflict,  the  latter 
one  will  prevail,  since  it  will  be  held  to  have  repealed  the 
former.  Where,  however,  the  second  is  made  by  an  in- 
ferior authority,  the  first  will  prevail,  as  where  a  gen- 
eral surrenders  on  terms  contrary  to  the  provisions  of  a 
treaty  already  negotiated  between  their  governments. 
Where  two  treaties  conflict  which  are  made  with  differ- 
ent states,  it  is  obvious  that  the  first  will  prevail,  for  it 
would  be  imposible  for  a  third  state  thus  to  interfere  with 
existing  treaty  rights  of  another  state,  without  its  con- 
sent (16). 

§  71.  Same:  Conflicts  with  laws.  Where  an  act 
of  the  Congress  of  the  United  States  conflicts  with  a 
prior  treaty  provision,  the  courts  will  give  preference 
to  the  act  of  Congress,  for  it  is  not  for  the  courts 
to  interfere  if  the  government  sees  fit  to  ignore  the 

(IC)     Hall,  337-43. 


PEACE  63 

treaties  into  which  it  has  entered  (17).  Where  a  treaty 
conflicts  with  a  statute  of  one  of  the  states,  the  treaty 
will  be  given  preference  (18).  Where  a  state  cove- 
nants to  give  to  another  nation  the  privileges  granted  to 
the  ''most  favored  nation",  it  refers  only  to  those  privi- 
leges which  are  granted  gratuitously  to  the  most  favored 
nation,  and  not  those  which  are  granted  on  the  condition 
of  a  reciprocal  privilege  (19). 

§  72.  Extinction  and  renewal.  All  treaties  are  extin- 
guished when  the  end  for  which  they  are  negotiated  is  ac- 
complished, when  the  period  of  time  for  which  they  are 
adopted  is  completed,  or  when  all  parties  to  the  agree- 
ment consent  to  its  termination  (20).  When  the  con- 
tinuance of  the  agreement  is  based  upon  terms  which  do 
not  exist,  as  where  the  right  to  navigate  a  river  is  given, 
but  the  river  ceases  to  be  navigable,  the  agreement  ends. 
When  performance  becomes  physically  impossible  or  ille- 
gal, or  where  a  voidable  treaty  is  repudiated  by  the  in- 
jured state,  the  treaty  relations  are  extinguished  (21). 

§  73.  Same:  Effect  of  war.  The  existence  of  war  may 
either  abrogate  or  suspend  treaty  relations  between  the 
belligerents,  or  it  may  leave  them  unaffected.  Treaties 
of  a  political  character,  negotiated  with  the  idea  of  set- 
ting up  a  permanent  condition  of  things,  such  as  bound- 
ary treaties,  or  treaties  modifying  the  rules  of  war  or 
made  in  contemplation  of  war,  will  not  be  abrogated  by 


(17)  Botiller  v.  Dominguez,  130  U.  S.  238. 

(IS)  Wunderle  v.  Wunderle,  144  111.  40. 

(19)  Whitney  v.  Robertson,  124  U.  S.  100. 

(20)  Treaties  and  Conventions  of  U.  S..  401,  472,  474. 

(21)  Davis,  Elements  of  Inter.  Law,  23C-9. 


64  INTERNATIONAL  LAW 

the  existence  of  war  (22).  Where  treaties  are  evidently 
intended  to  set  up  a  permanent  arrangement  in  regard  to 
such  matters  as  the  loss  and  acquisition  of  nationality, 
the  general  rule  seems  to  be  that  such  treaties  are  sus- 
pended, and  will  revive  with  the  cessation  of  hostile  rela- 
tions. Treaties  which  involve  continuous  acts  and  which 
are  not  expected  or  intended  to  he  permanent,  such  as 
commercial  or  postal  treaties  would  probably  be  abro- 
gated by  the  war,  though,  if  there  seemed  to  be  present 
the  intention  to  make  the  provisions  permanent,  such 
treaties  might  be  held  to  be  suspended  only  by  war,  and 
to  revive  at  the  close  of  war.  AVhere  third  states  are  par- 
ties to  the  treaty,  war  atfects  only  those  parts  of  the 
treaty  which  become  impossible  of  perfoimance  because 
of  the  hostile  relations.  In  all  cases  where  war  is  waged 
over  the  subject  matter  of  the  treaty,  the  treaty  is 
abrogated. 

Section  3.  Pacific  Settlement  of  Disputes. 
§  74.  In  general.  That  the  settlement  of  international 
disputes  by  war  should  be  regarded  as  a  last  resort  is  a 
proposition  that  now  meets  with  unanimous  assent.  Ami- 
cable settlements  of  disputes  may  be  secured  through 
diplomatic  negotiations,  through  the  good  offices  or 
friendly  mediation  of  third  states,  or  by  submitting  the 
controversy  to  the  decision  of  congresses  and  conferences, 
or  to  a  court  of  arbitration.  Diplomatic  negotiation  is 
carried  on  in  the  same  manner  as  other  diplomatic  busi- 
ness, whether  committed  to  reguhar  or  special  agents,  and 
has  for  its  purpose  the  friendly  adjustment  of  conflicting 


(22)     Sutton  V.  Sutton,  1  R.  &  M.  6G3. 


PEACE  65 

claims.  ''Good  offices"  and  mediation  consist  in  the  of- 
fer by  a  friendly  power  of  its  assistance  in  inaugurating 
negotiations  looking  to  the  peaceful  settlement  of  the  con- 
flict, and  in  the  conduct  of  such  negotiations.  The  settle- 
ment of  disputes  by  conferences  and  congresses,  generally 
composed  of  the  representative  of  the  interested  states 
and  occasionally  of  friendly  states  also,  has  been  of  com- 
mon occurrence  in  the  past. 

§  75.  International  arbitration.  Tlie  decision  of  dis- 
putes by  international  arbitration  is  a  question  of  rapidly 
increasing  importance,  especially  in  view  of  the  growing 
agitation  for  international  peace.  It  is  a  mode  of  settling 
disputes  between  two  or  more  states  by  submitting  the 
controversy  to  the  ultimate  decision  of  third  parties.  This 
is  done  by  a  form  of  treaty,  which  provides  for  the  ap- 
pointment of  the  arbitrators,  rules  of  procedure,  and  all 
other  matters  necessary  to  the  arbitration.  The  award 
of  the  arbitrators  is  as  binding  upon  the  parties  to  it 
as  any  treaty  obligation,  and  the  United  States  courts 
have  held  that  the  finding  of  a  court  of  arbitration  will 
be  given  the  same  effect  in  the  courts  as  a  regular  treaty 
(23).  The  award  may  be  avoided  when  the  tribunal  has 
clearly  exceeded  its  powers  as  conferred  by  the  treaty  of 
arbitration,  when  the  decision  is  an  open  denial  of  justice, 
when  the  award  has  been  secured  through  fraud  or  cor- 
ruption, and  when  the  terms  of  the  finding  are  equivocal 
(24). 

§  76.    The  Hague  Conference.  With  a  view  to  encourag- 


(23)  La  NeBfa,  75  Fed.  513. 

(24)  Glenn,  International  Law,  156. 


66  INTEENATIONAL  LAW 

ing  the  settlement  of  disputes  by  arbitration,  tlie  Peace 
Conference  at  the  Hague  in  1899,  provided  for  a  Per- 
manent Court  of  Arbitration,  which  is  to  be  composed 
of  persons  chosen  by  the  parties  to  the  dispute  from  a 
permanent  list  of  judges,  nominated  by  the  signatory 
powers.  The  ** compromise"  or  preliminary  agreement 
sets  forth  the  precise  question  which  is  to  be  referred  for 
determination,  and  defines  the  character  and  powers  con- 
ferred upon  the  tribunal.  There  is  an  established  pro- 
cedure, which,  however,  may  be  regulated  or  changed  by 
the  terms  of  the  preliminary  agreement  (25). 

§  77.  Means  of  compulsion  short  of  war:  Retorsion. 
Between  the  peaceful  methods  of  adjusting  disputes  just 
considered  and  the  resort  to  war,  there  are  certain  reme- 
dies of  a  serious  nature  to  which  a  nation  is  justified  in 
resorting,  on  the  assumption  that  it  is  the  only  remedy 
short  of  war.  Such  means  are  only  justifiable  when  a 
nation  is  guilty  of  wrongful  acts  and  refuses  to  discon- 
tinue such  acts  or  make  reparation  for  those  already 
done.  These  measures  of  redress  may  be  classified  under 
two  heads,  retorsion  and  reprisals.  Retorsion  is  retalia- 
tion in  kind.  When  one  state  refuses  to  grant  certain 
rights  to  the  citizens  of  another  state,  that  state  resorts 
to  retorsion  when  it  in  turn  refuses  the  same  rights  to  the 
citizens  of  the  offending  country.  Retorsions  generally 
do  not  apply  to  serious  breaches  of  international  law,  but 
only  to  unfriendly  acts  or  violations  of  international 
comity. 


(25)     ITaKuo  Convention  for  the  Paciflc  Settlement  of  International 
Disputes,  1907. 


PEACE  e7 

§  78.  Same:  Reprisals.  Reprisals  consist  in  the  forci- 
ble seizure  by  a  state  and  confiscation  or  detention  of  the 
property  of  the  offending  state,  or  the  capture  or  mis- 
treatment of  its  citizens,  but  are  only  justified  when  that 
state  has  violated  some  legal  right  and  not  mere  matters 
of  comity.  At  the  present  time  they  are  rarely  resorted 
to,  except  by  a  strong  nation  against  a  weaker  one,  with 
the  object  of  obtaining  redress  without  recourse  to  war 
(26).  One  of  the  most  common  forms  of  reprisals  is  the 
embargo,  prohibiting  the  ships  of  the  offending  nation 
from  leaving  the  ports  of  the  other,  which  amounts  to  the 
sequestration  of  their  vessels.  If  the  dispute  is  satis- 
factorily adjusted  the  boats  are  released,  but  if  war  re- 
sults they  may  be  confiscated  (27) ;  or,  if  sequestration  is 
not  sufficient  to  secure  an  adjustment  of  the  dispute,  con- 
fiscation is  justified.  This  is  on  the  theory  that  the  only 
other  recourse  is  war,  and  therefore  it  follows  that  any 
act,  less  than  war,  is  legitimate  if  necessary  for  the  peace- 
ful enforcement  of  such  claims. 

§  79.  Same:  Pacific  blockade.  Another  and  more  re- 
cent form  of  reprisals  is  resort  to  pacific  blockade,  which 
means  that  the  ports  of  the  offending  nation  will  be  block- 
aded against  their  own  vessels.  This  too  is  employed  for 
the  purpose  of  securing  redress  against  acts,  which  in 
former  times  would  have  justified  hostilities  amounting 
to  war.  They  have  generally  been  resorted  to  by  stronger 
nations  against  weaker  ones  with  the  idea  of  forcing 
reparation  by  peaceful  means,  and  the  law  seems  clearly 


(26)  1  Halleck,  423-33. 

(27)  Boedes  Lust,  5  Rob.  246. 


38  INTEENATI02^AL  LAW 

established  that  they  can  only  be  enforced  against  the 
vessels  of  the  offending  state,  and  not  against  neutrals 
(28).  To  determine  the  nationality  of  neutrals  however, 
the  ''right  of  approach"  may  be  exercised. 


(28)     Annaire  1887,  p.  270 ;  Pari.  Papers,  Greece,  No.  4,  1886. 


WAR  59 


CHAPTER  V. 

WAE 

§  80.  In  general.  War  is  a  contest  carried  on  by  armed 
public  forces  between  states,  or  between  a  state  and  a 
community  whose  rights  of  belligerency  have  been  duly 
recognized.  Peace  being  the  normal  condition  between 
the  states  recognized  in  the  family  of  nations,  this  rela- 
tion should  not  be  disturbed,  except  where  redress  or  re- 
lief is  sought  from  past  or  impending  violations  of  inter- 
national law.  Contests  for  conquest  and  plunder  are 
therefore  unjustifiable,  although  the  objects  of  war  are 
not  limited  to  the  causes  of  the  conflict,  and  circumstances 
may  so  change  as  to  justify  the  triumphant  state  in  de- 
manding more  than  that  for  which  the  war  was  waged. 

§  81.  Declaration  and  commencement  of  war.  A  state 
of  war  at  once  suspends  certain  legal  rights  existing  in 
times  of  peace  and  brings  into  operation  certain  laws  of 
war.  Thus,  the  immediate  effect  of  war  is  to  suspend  all 
peaceful  intercourse  between  the  belligerent  states  and 
between  the  residents  of  these  states,  and  to  introduce 
new  relationships  and  obligations  between  the  belligerent 
states  and  neutral  nations.  This  being  so,  the  question 
as  to  the  exact  date  of  the  beginning  of  hostilities  and  the 
formal  evidence  of  their  existence,  becomes  one  of  con- 
siderable importance.    Originally  the  rules  of  war  pro- 


70  INTERNATIONAL  LAW 

vided  for  a  formal  declaration,  but  in  recent  years  that 
practice  has  been  abandoned,  and,  while  most  nations 
deem  it  advisable  to  publish  a  manifesto  or  declaration  of 
war,  it  cannot  be  said  to  be  required  by  law.  It  has  been 
held  that  the  laws  of  war  come  into  operation  when  actual 
hostilities  begin,  regardless  of  whether  the  declaration 
of  war  has  yet  been  made  (1),  but  that  the  declaration  of 
war  would  determine  the  date  of  its  commencement  if 
made  before  actual  hostilities  took  place  (2).  The  Hague 
Conference  of  1907  declared  that  hostilities  ought  not  to 
commence  without  a  previous  and  unequivocal  notice, 
and  that  such  a  situation  should  not  be  effective  against 
neutrals,  until  after  formal  notice  or  actual  knowledge  of 
the  existence  of  war  (3). 

§  82.    Effect  of  war  on  treaties.     This  has  been  dis- 
cussed in  §  73,  above. 

Section  1.    Effects  upon  Persons  and  Business 

Relations. 
§  83.  Combatants  and  non-combatants.  The  existence 
of  war  between  states  makes  their  citizens  and  subjects 
the  legal  enemies  of  each  other,  and  they  remain  in  this 
hostile  relation  during  the  continuation  of  the  contest. 
This  does  not  mean,  however,  that  the  citizens  of  one 
state  may  attack,  kill,  and  imprison  the  citizens  of  the 
enemy  state  at  pleasure,  nor  that  they  can  confiscate  their 
property.  On  the  contrary,  the  laws  of  war  expressly 
provide  that  only  a  certain  class  of  the  enemy,  known  as 


(1)  The  ranaina,  87  Fed.  927. 

(2)  Dale  v.  Merchants  Ins.  Co.,  51  Me.  470. 
(.3)     Davis.  Elements  of  International  Law,  552. 


WAE  71 

belligerents  or  combatants,  can  legally  take  part  in  sucb 
hostilities,  and  then  only  when  organized  under  the  au- 
thority of  the  state.  The  Hague  Conference  of  1907  pro- 
vides that  the  rights  and  obligations  of  belligerents  ex- 
tend to  the  regular  organized  army  of  the  state  and  also 
to  the  militia  forces  and  bodies  of  volunteers  which  have 
at  their  head  a  person  responsible  for  his  subordinates, 
who  have  a  fixed,  distinctive  badge  recognizable  from  a 
distance,  carrying  arms  openly,  and  conforming  in  their 
operations  to  the  laws  and  usages  of  war.  All  agents, 
contractors,  and  retainers  of  the  camp,  who  accompany 
the  army  in  official  capacity  and  assist  in  its  movement  or 
maintenance,  are  entitled  to  the  rights  of  belligerents  or 
combatants  if  captured  (4).  Non-combatants  are  all 
those  residents  of  the  hostile  country  who  pursue  their 
ordinary  avocations,  and  are  exempt  or  are  not  organized 
or  called  into  the  military  service  of  the  state.  They  lose 
their  character  as  such,  however,  whenever  they  engage 
directly  or  indirectly  in  hostile  acts  against  the  enemy, 
whether  through  the  order  of  their  government  or  acting 
upon  their  own  initiative.  When  performing  hostile  acts 
without  the  authority  of  their  state,  they  act  illegally,  and 
are  no  longer  entitled  to  the  rights  of  belligerents,  but 
may  be  punished  according  to  the  degree  of  the  otfence, 
either  by  the  enemy  or  the  authorities  of  their  own  states. 
§84.  "Reasonable  necessities  of  war."  The  subjects 
or  residents  of  an  enemy  state  are  divided  into  the  two 
classes  of  combatants  and  non-combatants  that  have  just 
been  defined.    In  determining  what  are  the  rights  of  per- 


(4)     Davis,  573-4. 

Vol,  X— 7 


72  INTERNATIONAL  LAW 

sons  which  te  enemy  must  respect,  we  must  begin  with 
the  fundamental  p-rinciple  upon  which  the  rules  of  modern 
warfare  have  been  largely  based,  which  is,  that  ''the 
measure  of  permissible  violence  is  furnished  by  the  rea- 
sonable necessities  of  war."  The  reasonable  necessities 
of  war  are  limited  by  the  immediate  objects  of  war,  as  dis- 
tinguished from  the  ultimate  purposes  to  be  accomplished. 
The  Institute  of  International  Law  declared  in  1880  that 
the  only  legitimate  end  tli^t  a  state  may  have  in  war  is  to 
weaken  the  military  strength  of  the  enemy  (5).  This 
seems  to  be  sound  doctrine,  and  was  promulgated  in  the 
declaration  of  St.  Petersburg  of  1868.  The  modern  tend- 
ency is  to  forbid  all  practices  resulting  in  needless  de- 
struction of  life  and  property.  The  fundamental  prin- 
ciple seems  to  be  that  there  must  be  a  reasonable  pro- 
jDortion  between  the  amount  of  life  and  property  de- 
stroyed by  a  hostile  practice,  and  the  effectiveness  of  that 
practice  to  break  down  armed  resistance.  Thus  the  bom- 
bardment of  an  unfortified  town  means  the  wanton  de- 
struction of  life  and  property,  while  it  has  no  direct  ef- 
fect in  breaking  down  armed  resistance  except  to  in- 
timidate the  enemy,  and  it  is  held  therefore  to  be  illegal 
(6). 

§  85.  Rights  of  non-combatants.  Applying  these  prin- 
ciples towards  the  treatment  of  non-combatants  by  the 
enemy,  the  case  is  clear  that  generally  non-combatants 
should  be  free  from  all  direct  injury  or  attack.  It  is 
obvious  that  while  the  slaughter  of  non-combatants  would 


(5)  Wilson  &  Tucker,  233. 

(6)  Hall,  397. 


WAK  73 

have  a  tendency  to  break  down  the  armed  resistance  of  the 
state,  yet  its  effectiveness  in  this  regard  would  be  en- 
tirely disproportionate  to  the  loss  of  life  and  property 
entailed  by  such  a  practice.  There  are  certain  non-com- 
batants, however,  whose  imprisonment  would  many  times 
materially  aid  in  breaking  down  the  resistance  of  the 
enemy,  and  which  would  not  .on  the  other  hand  result  in 
any  excessive  amount  of  suffering  or  cruelty.  The  im- 
prisonment of  such  persons  is  therefore  considered  legal, 
and  may  be  applied  to  sovereigns,  ministers,  or  other 
high  officers  of  state,  or  to  private  citizens  who  are  es- 
pecially useful  in  war,  such  as  sailors,  telegi'aphers,  and 
similar  persons. 

§86.    Treatment  of  combatants:    Giving  quarter.    The 

right  to  kill  and  wound  the  armed  forces  of  the  enemy 
state  in  general  ceases,  as  soon  as  the  belligerents  are  in- 
capacitated for  the  conflict,  or  as  soon  as  they  surren- 
der. To  kill  them  after  they  ceased  to  be  a  factor  in  the 
fight  would  not  be  a  reasonable  step  towards  the  break- 
ing down  of  hostile  resistance.  The  duty  of  giving  quar- 
ter to  combatants  in  such  cases  is  well  established.  It 
has  been  generally  supposed,  however,  that  there  is  no 
duty  to  give  quarter  when  enemies  have  violated  the  laws 
of  war,  or  where  their  commander  or  government  has 
done  acts  justifying  reprisals,  or  where  the  giving  of  no 
quarter  is  necessary,  because  .the  belligerents  cannot 
cumber  themselves  with  prisoners,  without  danger  to 
themselves  (7).    The  validity  of  these  exceptions  is  cer- 

(7)     2  Westlake,  75 ;  Instructions  for  Govt,  of  Army  of  U.  S.  in  the 
Field,  art.  60. 


74  INTERNATIONAL  LAW 

tainly  open  to  doubt  today,  and,  upon  the  principle  of  the 
case,  it  would  seem  that  the  inhumanity  of  slaughtering 
prisoners  of  war  is  grossly  disproportionate  to  its  ef- 
fectiveness in  overcoming  the  armed  resistance  of  the 
enemy.  The  second  Peace  Conference  at  The  Hague 
adopted  a  convention  in  which  among  other  things  it  is 
''especially  forbidden  ...  to  wound  or  kill  an 
enemy,  who,  having  laid  down  his  arms,  or  having  no 
longer  means  of  defense,  has  surrendered  at  discretion; 
(or)  to  declare  that  no  quarter  shall  be  given"  (8). 

§  87.  Same:  Conventional  provisions.  The  liability  of 
surgeons  to  be  detained  as  prisoners  of  war,  the  possi- 
bility of  the  capture  of  hospital  property,  and  similar 
difficulties,  made  the  proper  care  of  the  sick  and  wounded 
on  the  field  very  difficult,  with  the  result  that  in  the  Ge- 
neva convention  of  1864  provisions  were  adopted,  which 
were  amplified  by  the  supplemental  agreement  of  1868, 
attempting  to  facilitate  the  care  of  the  sick  and  wounded. 
These  provisions  have  been  replaced  in  the  Geneva  Con- 
vention of  1906  and  in  the  Peace  Conference  of  1907. 
They  grant  immunity  to  the  wounded,  to  surgeons  and 
others  assisting  them,  and  provide  that  field  hospitals 
cannot  be  diverted  from  their  use.  The  capture  of  hos- 
pital ships  is  forbidden  and  the  Red  Cross  is  adopted  as 
the  sign  of  the  sanitary  service  of  the  army  (9). 

While  it  is  clear  that  the  Conventions  of  the  Peace  Con- 
ferences at  The  Hague  and  similar  conventions  are  bind- 
ing only  upon  the  signatory  powers,  yet  it  is  likely  that 


(8)  Bordwell,  Law  of  War,  282-3. 

(9)  Bordwell,  249-77 ;  Hall,  401-6. 


WAK  75 

most  of  the  provisions  receiving  such  sanction  will  be  ac- 
cepted by  the  nations  of  the  world. 

§88.  Prisoners  of  war.  "All  persons  whom  the  bellig- 
erent may  kill,  and  all  persons  who  may  be  separated  from 
the  mass  of  non-combatants  by  their  importance  to  the 
enemy's  state,  or  by  their  usefulness  to  him  in  his  war, 
on  surrendering  or  being  captured,  become  prisoners  of 
war"  (10).  The  law  regarding  the  treatment  of  such 
prisoners  -^s  well  summarized  in  one  of  the  conventions 
of  the  Second  Peace  Conference  (11).  Prisoners  of  war 
must  be  humanely  treated,  and  with  no  greater  severity 
than  is  necessary  to  prevent  their  escape.  All  their  per- 
sonal belongings,  except  arms,  horses,  and  military 
papers  remain  their  property.  The  state  may  utilize  the 
labor  of  prisoners,  according  to  their  rank  and  aptitude, 
officers  excepted,  provided  the  tasks  be  not  excessive  and 
have  no  connections  with  the  operations  of  war.  The  prof- 
its of  such  labor  must  be  expended  in  improving  their 
condition,  the  balance  being  paid  to  them  upon  their  re- 
lease. The  capturing  government  is  charged  with  the 
maintenance  of  prisoners  of  war  and  they  shall  be  treated! 
as  regards  food,  lodging,  and  clothing,  as  the  troops  of 
the  capturing  government. 

Where  the  laws  of  the  prisoners*  country  allow  it,  pris- 
oners may  be  paroled,  and  their  government  is  bound 
neither  to  require  of  them  or  accept  from  them  any  ser- 
vice incompatible  with  their  parole,  which  is  generally  an 


(10)  Glenn,  187. 

(11)  (Convention  concerning  the  laws  and  customs  of  war  on  land, 
Chap.  II. 


76  INTEEJ^ATIOXAL  LAW 

agreement  not  to  engage  in  any  further  active  service  in 
the  field  and  holds  good  until  peace  has  been  established 
(12).  Parole  cannot  be  enforced  upon  prisoners  against 
their  consent.  A  person  breaking  his  parole,  if  cap- 
tured, forfeits  his  rights  as  a  prisoner  of  war,  and  may 
be  brought  before  a  court  martial  and  given  the  extreme 
penalty  of  death  (13). 

§  89.  Enemy  character  of  persons.  The  general  rule 
has  been  stated  that  all  the  subjects  or  citizens  of  enemy 
countries  are  enemies.  This,  however,  must  be  limited 
by  certain  well  defined  exceptions.  All  the  persons  found 
in  the  military  or  naval  forces  of  a  belligerent  state,  re- 
gardless of  their  nationality,  are  obviously  possessed  of 
enemy  character.  Seamen  navigating  the  merchant  ves- 
sels of  the  enemy  state,  and  citizens  of  the  opposing  or 
neutral  states,  when  domiciled  in  the  enemy  state,  are 
impressed  with  the  enemy  character.  If  domiciled  in  the 
enemy  state,  while  they  cannot  be  compelled  to  perform 
military  service,  they  pay  taxes  to  the  enemy  and  help  to 
form  one  of  the  indirect  sources  of  the  enemy's  strength 
(14).  Persons  domiciled  in  territory  under  the  military 
conquest  of  a  belligerent  are,  for  the  same  reasons,  im- 
pressed with  the  character  of  the  occupying  enemy,  even 
as  against  the  state  of  their  original  allegiance  (15). 
From  this  it  must  be  evident  that  it  is  not  nationality  but 
domicile  that  determines  enemy  character.  The  under- 
lying principle  is  that  enemy  character  belongs  to  those 


(12)  Instructions  for  Govt,  of  U.  S.  Armies  in  Field,  sec.  130. 

(13)  2  Ilalleck,  77,  78. 

(It)  Lawrence,  Principles  of  Inter.  Law,  sees.  100-173. 

(15)  Thirty  lloi^sheads  of  Sugar  v.  Bayle,  0  Crancli,  195. 


WAR  77 

who  are  of  direct  or  indirect  assistance  to  the  enemy 
state,  and  persons  domiciled  in  a  state  contribute  indi- 
rectly to  its  support.  Domicil  is  determined  by  length  of 
residence  and  intent  to  reside  there  indefinitely.  Where 
there  is  evident  intent,  domicil  is  acquired  at  once  by  tak- 
ing up  residence  (16).  Length  of  residence  alone,  how- 
ever, may  determine  domicil  (17).  In  cases  of  acquired 
domicil,  however,  the  character  of  the  original  domicil 
easily  reverts,  for  it  has  been  held  that  it  reverts  upon 
the  mere  leaving  of  the  new  domicil  for  the  old  one  (18). 
It  is  equally  true  that  a  citizen  of  an  enemy  state  may 
lose  his  enemy  character  by  acquiring  a  domicil  in  a  neu- 
tral state. 

§90.    Peaceful    intercourse    between    enemies.      The 

statement  is  generally  made  that  war  itself  renders  all 
peaceful  intercourse  between  persons  invested  with  enemy 
character  illegal.  A  contrary  view  has  been  held  in  some 
eases,  that  it  is  not  the  existence  of  war  but  the  prohibi- 
tion of  the  political  authorities  in  time  of  war  that  makes 
it  illegal  (19).  Although  this  latter  view  cannot  be  said 
to  be  the  established  law  (20),  the  fact  must  be  borne  in 
mind,  however,  that  whether  special  action  of  the  political 
authorities  is  necessary  or  not  to  make  intercourse  il- 
legal, the  illegality  is  the  result  of  the  municipal  law  of 
the  states  involved,  and  not  of  international  law,  which 
only  gives  td  the  state  the  right  to  interdict  commerce  in 


(16)  Wheaton,  International  Law,  sec.  321. 

(17)  The  Harmony,  2  Rob.  Aclm.  324,  325. 

(18)  The  Venus,  8  Cranch,  253. 

(19)  Matthews  v.  McStea,  91  IT.  S.  7. 

(20)  Exposito  V.  Bowden,  4  El.  &  Blackburn,  963. 


78  INTEENATIONAL  LAW 

time  of  war,  but  does  not  itself  prohibit  it.  Wliere  inter- 
course is  interdicted  by  war,  any  relations  of  contract, 
agency,  or  partnership,  entered  into  by  the  subjects  of 
enemy  states  during  the  war,  are  void  by  the  common  law 
theory  of  illegality  (21).  Any  similar  relations  entered 
into  before  the  beginning  of  war,  which  involve  inter- 
course between  enemies,  are  suspended  during  the  war 
or  extinguished,  depending  upon  whether  they  could  be 
taken  up  at  the  end  of  the  war  with  equity  to  both  par- 
ties (22).  Agents  may  bind  their  principals  in  the  enemy 
country,  if  the  agency  was  created  before  the  beginning 
of  war  and  their  relations  do  not  involve  any  intercourse 
between  them  during  the  war  (23).  Where  debts  cannot 
be  paid  because  it  would  involve  intercourse  with  the 
enemy,  there  is  a  conflict  of  authority,  but  the  better  view 
is  that  interest  can  be  collected  during  the  time  of  the 
war  (24).  Where,  as  in  the  United  States  and  England, 
an  alien  enemy  cannot  use  the  courts  of  the  state,  the 
statute  of  limitations  does  not  run  (25)  during  the  time  of 
the  war.  However,  the  Second  Peace  Conference  adopted 
provisions  that  practically  prohibit  a  belligerent  from 
refusing  the  use  of  its  courts  to  alien  enemies  (26).  Ran- 
som contracts,  ransom  bills,  safe  conducts,  etc.,  because 
a  state  of  war  contemplates  such  contracts,  are  consid- 


(21)  Potts  V.  Bell,  8  Term  Rep.  548. 

(22)  N.  Y.  Life  Ins.  v.  Statem,  93  U.  S.  24. 

(23)  Small's  Administrator  v.  Lampkin's  Exr.,  28  Gratton  (Va.)  832. 

(24)  Ex  parte  Boussraaker,  13  Vosey,  71. 

(25)  Hanger  v.  Abbott.  0  Wall.  532. 

(20)  Convention  concerning  the  Lawf?  and  Customs  of  War  on  Land, 
art.  23,  h. 


WAR  79 

ered  legal  (27).  Since  tlie  prohibition  of  intercourse  is  a 
matter  of  municipal  law,  by  that  same  law  it  may  be  made 
legal  by  granting  licenses  to  trade  with  the  enemy  which 
will  legalize  such  intercourse. 

§  91.  Belligerent  subjects  in  hostile  territory  at  out- 
break of  war.  Where  citizens  of  a  belligerent  state  are 
located  in  the  territory  of  the  enemy  state  at  the  outbreak 
of  the  war,  the  modern  custom  is  to  allow  them  a  rea- 
sonable time  in  which  to  arrange  their  affairs  and  with- 
draw from  the  country;  or  to  allow  them  to  remain,  on 
condition  that  they  do  no  hostile  act.  As  to  whether  the 
bringing  home  of  their  property  with  them  constitutes 
trade  with  the  enemy,  there  are  conflicting  decisions,  the 
later  ones  holding  that,  if  the  property  is  removed  as 
soon  as  possible  with  the  intention  of  removing  it  from 
enemy  control,  it  will  not  be  considered  trade  with  the 
enemy  (28). 

Sectioit  2.  Propeety  of  Enemy. 
§  92.  Public  property  on  land:  Movables.  Originally 
the  laws  of  war  allowed  the  capture  of  all  property  of  the 
enemy,  whether  private  or  public,  but  in  more  recent 
times  the  rules  of  war  have  been  greatly  changed  with  a 
view  to  confining  such  acts  to  cases  which  really  affect 
the  military  security  of  the  enemy,  and  the  general  rule 
now  is  that  all  public  property  which  the  captors  could 
use  for  warlike  purposes  and  all  property,  which,  if  left 
to  the  enemy,  could  be  used  directly  or  indirectly  to  aid 
his  cause,  is  subject  to  capture.    The  law  is  well  summed 


(27)  Cornu  v.  Blackburn,  2  Doug.  640. 

(28)  Fifty-two  bales  of  Cotton,  Blatchford's  Prize  Cases,  664. 


80  INTEENATIONAL  LAW 

Tip  in  one  of  the  conventions  at  the  Second  Peace  Confer- 
ence as  follows :  ' '  An  army  of  occupation  can  only  take 
possession  of  cash,  funds,  and  realizable  securities  which 
are  strictly  the  property  of  the  state,  depots  of  arms, 
means  of  transport,  stores  and  supplies,  and  generally 
all  movable  property  belonging  to  the  state  which  may  be 
used  for  military  operations"  (1). 

§  93.  Same:  Immovables.  A  different  view  prevails 
in  regard  to  immovable  property  of  the  enemy,  except 
where  the  property  is  of  hostile  character,  as  forts,  navy 
yards,  etc.,  since  the  title  of  the  captor  does  not  vest 
until  occupation  passes  into  subjugation  at  the  end  of 
the  war,  and  its  mere  possession  by  the  captor  prevents 
its  being  used  in  any  way  to  help  the  enemy.  Conse- 
quently, the  use  and  profits  of  immovable  property  is  all 
that  modern  law  allows.  The  convention  adopted  at  the 
Peace  Conference  provided  that  ''the  occupying  state 
be  regarded  only  as  administrator  and  usufructuary  of 
public  buildings,  real  estate,  forest  and  agricultural  es- 
tates belonging  to  the  hostile  state,  and  situated  in  the 
occupied  country.  It  must  safeguard  the  capital  of  these 
properties,  and  administer  them  in  accordance  with  the 
rules  of  the  usufruct"  (2).  The  seizure,  destruction,  or 
damage  of  the  property  of  municipalities  and  institutions 
dedicated  to  religion,  charity,  education,  and  the  arts  and 
sciences,  is  expressly  forbidden  (3).  Where  military  oc- 
cupation passes  into  permanent  occupation  and  owner- 


(1)  Convention  concerning  the  Laws  and  Customs  of  War  on  Land, 
art.  53. 

(2)  Ibid.,  art.  55. 

(3)  Ibid.,  art.  5G. 


WAR  81 

ship,  by  virtue  of  permanent  conquest  or  the  treaty  of 
peace,  it  is  obvious  that  the  title  of  immovable  public 
property  passes  with  it.  The  title  to  movable  property 
captured  on  land  passes  with  the  capture  (4). 

§  94.  Private  property  on  land:  Immovables.  In  re- 
gard to  immovable  private  property  the  law  is  that  it 
cannot  be  confiscated  and  cannot  therefore  be  alienated, 
doubtless  for  the  same  reason  that  the  public  property 
of  the  enemy  cannot  be  confiscated,  for  the  captors '  right 
or  ability  to  alienate  such  property  must  abide  the  fate 
of  the  war,  and  if  he  did  sell,  there  is  no  assurance  that 
he  would  be  in  possession  at  the  end  of  the  war,  and 
therefore  able  to  give  a  good  title.  It  was  provided  at  the 
Second  Hague  Conference  that  such  property  as  is 
adapted  for  the  transportation  of  persons  and  things,  or 
for  the  transmission  of  news,  and  all  kinds  of  ammuni- 
tions for  war,  though  the  property  of  individuals,  may  be 
seized,  but  the  i^roperty  must  be  returned  and  the  com- 
pensation for  its  use  determined  when  peace  is  made  (5). 
In  times  of  military  necessity,  however,  immovable  prop- 
erty of  the  enemy  may  be  utilized  for  the  quartering  of 
troops,  etc. 

§  95.  Same:  Movables.  Contributions.  Except  in 
times  of  great  military  necessity,  the  movable  private 
property  of  the  enemy,  which  does  not  come  under  the 
provisions  of  the  convention  just  mentioned,  is  subject 
to  seizure  only  under  regulations  governing  contributions 


(4)  Titus  V.  U.  S.,  20  Wall.  475. 

(5)  Convention  concerning  the  Laws  and  Customs  of  War  on  Land, 


art.  53. 


82  INTEENATIONAL.LAW 

and  requisitions.  Pillage  and  plunder  have  been  abol- 
ished. The  old  view  that  war  supports  war  still  continues, 
but  is  subject  to  the  regulations  governing  contributions 
and  requisitions,  which  attempt  to  reduce  the  hard- 
ships to  the  minimum.  The  provisions  of  the  Hague 
Convention  regarding  contributions,  which  consist  of 
moneys  levied  by  the  troojDs  in  excess  of  the  regular  taxes, 
provide:  *'No  contribution  shall  be  collected  save  in 
virtue  of  an  order  given  in  writing,  and  on  the  responsi- 
bility of  a  general-in-chief.  This  method  of  collection 
shall  be  resorted  to  only  in  accordance  with  the  existing 
rules  of  assessment  and  apportionment.  For  every  con- 
tribution a  receipt  shall  be  given  to  the  contributor"  (6). 
According  to  this,  contributions  must  be  levied  in  the 
same  manner  and  by  the  same  assessment,  if  possible,  as 
the  taxes  of  the  occupied  territory  were  assessed  by  the 
regular  government.  The  receipts  given  to  the  contribu- 
tors are  for  the  purpose  of  enabling  the  contributor  to 
make  a  claim  against  his  own  government  at  the  closa  of 
the  war,  and  also  to  show  to  any  other  officers  of  the 
enemy  who  might  later  demand  a  contribution. 

§96.  Same:  Requisitions.  Eequisitions  consist  of 
services,  supplies,  and  all  things  that  are  necessary  for 
the  support  of  the  army.  The  convention  at  The  Hague 
provides  that  requisitions  shall  be  limited  to  the  things 
needed  by  the  army  of  occupation,  shall  bear  some  rela- 
tion to  the  resources  of  the  community,  and  shall  not 
imply  an  obligation  on  the  part  of  the  inhabitants  to  take 
part  in  military  operations  against  their  own  country. 

(C)     Ibid.,  art.  51. 


WAR  83 

They  shall  be  demanded  only  upon  the  authority  of  the 
commander  of  the  occupied  locality,  and  as  far  as  possi- 
ble shall  be  paid  for  in  cash.  Wliere  not  possible,  receipts 
shall  be  given,  for  which  payment  shall  be  arranged  as 
soon  as  possible  (7). 

Where  a  naval  force  is  in  need  of  supplies,  the  ques- 
tion may  be  raised  whether  contributions  or  requisitions 
may  be  demanded  by  them.  This  proposition  is  covered 
by  one  of  the  conventions  of  the  Second  Peace  Confer- 
ence, which  allows  a  naval  force  to  demand  necessary 
requisitions  and  to  enforce  the  demand  with  bombard- 
ment, if  necessary,  but  the  right  of  the  naval  force  to  en- 
force their  demands  for  contributions  by  bombardment  is 
prohibited. 

§  97.  Confiscation  of  public  and  private  debts.  The  law 
is  now  well  established  that  debts  owned  by  enemy  in- 
dividuals or  nations  against  the  state  cannot  be  confis- 
cated. It  has  been  contended  by  some  recent  writers  that 
the  debts  owned  by  enemy  individuals  are  still  subject  to 
the  right  of  confiscation,  but  that  states  have  merely 
failed  to  take  advantage  of  that  right  in  recent  times. 
This  question  may  be  considered  definitely  determined  by 
the  action  of  the  Second  Peace  Conference,  which  forbids 
the  abolition  or  suspension  of  the  rights  and  actions  of 
enemy  persons  (8). 

§  98.  Enemy  character  of  property  upon  the  seas.  Be- 
fore we  can  discuss  the  confiscation  of  enemy  property, 
we   must   ascertain  what   property  is   impressed  with 


(7)  Ibid.,  art  52. 

(8)  Ibid.,  art.  23,  h. 


84  INTEEXATIOXAL  LA^ 

enemy  character  when  upon  the  seas.  Property  is 
enemy  property  on  the  seas  when  it  is  the  public  prop- 
erty of  the  enemy;  when  it  is  the  private  property 
of  persons  who  are  themselves  impressed  with  enemy 
character;  when  it  is  the  produce  of  estates  owned  by 
neutrals,  but  where  the  estate  is  situated  in  the  enemy 
country,  so  long  as  it  remains  the  property  of  the  owner 
of  the  hostile  soil  (9) ;  when  the  property  is  owned  by 
neutrals,  but  is  connected  with  a  house  of  trade,  owned 
by  them  and  situated  in  enemy  territory  (10) ;  and  when 
merchantmen  are  owned  by  subjects  of  neutral  states, 
but  are  sailing  under  the  enemy  flag. 

§  99.  Capture  and  confiscation  of  property  at  sea.  The 
general  rule  may  be  laid  down  that  enemy  property, 
whether  public  or  private,  found  upon  the  seas  or  in  the 
territorial  waters  of  either  belligerent,  is  liable  to  capture 
and  confiscation.  This  however  is  subject  to  certain  limi- 
tations which  we  must  now  consider.  By  strict  legal 
theory,  enemy  property  upon  the  seas  or  in  the  territorial 
waters  of  either  belligerent  is  subject  to  confiscation  the 
moment  of  the  outbreak  of  the  war.  In  recent  years  it  has 
been  the  practice,  however,  to  grant  certain  days  of  grace 
to  enemy  vessels  within  the  territorial  waters  of  the  bel- 
ligerent and  immunity  to  vessels  which  had  already  sailed 
before  the  war  commenced  for  the  ports  of  the  bellig- 
erents, for  the  voyage  to  and  from  such  port.  Such  was 
the  nature  of  the  convention  adopted  at  the  Second  Peace 
Conference,  which,  however,  exempted  all  vessels  from 


(9)  Thirty  Hogsheads  of  Sugar,  9  Cranch,  195-9. 

(10)  The  Freuiulschaft,  4  Wheaton,  105. 


WAE  85 

these  privilges,  whose  construction  indicates  that  they 
are  intended  to  he  transferred  into  vessels  of  war. 

§  100.  Same:  Exceptions.  Among  the  clear  excep- 
tions to  the  above  rules  allowing  capture  are  the  cases  of 
vessels  actually  engaged  in  cartel  service,  vessels  en- 
gaged in  exploration  and  scientific  work,  small  coast  fish- 
ing vessels,  and  hospital  ships.  Provisions  adopted  at 
the  Hague  Conference  makes  the  postal  correspondence 
of  neutrals  and  belligerents  both  free  from  capture  (11). 
For  the  past  century  or  over  there  has  been  a  growing 
agitation  for  the  abolition  of  the  capture  of  private  prop- 
erty at  sea,  which  culminated  in  the  declaration  of  Paris 
of  1856.  Among  other  things  this  declaration  provided 
that  the  neutral  flag  covers  enemy  goods  and  makes  them 
free  from  capture,  and  that  neutral  goods,  though  under 
enemy's  flag,  are  exempt  from  confiscation,  except  where 
it  may  be  contraband  of  war  in  either  case.  It  is  true 
that  this  only  binds  the  signatory  powers,  but  it  is  most 
unlikely  that  any  other  nations  would  in  time  of  war  fail 
to  abide  by  the  provisions. 

§  101.  Same:  When  title  vests.  The  capture  of  a  pri- 
vate enemy  ship  takes  place  when  it  has  surrendered,  and 
the  captors  have  evidenced  an  intention  to  take  posses- 
sion of  it.  The  title  does  not  vest  in  the  state  completely, 
however,  until  it  has  been  brought  into  a  prize  court  and 
properly  condemned.  It  is  the  duty  of  the  captors,  where 
possible,  to  bring  the  ship  in  for  condemnation,  but  where 
impossible,  because  of  inability  to  care  for  it,  it  may  be 


(11)     Convention  Imposing  Certain  Restrictions  upon  tlie  Riglits  of 
Capture  in  Maritime  Warfare,  art.  1. 


86  INTERNATIONAL  LAW 

destroyed  without  coindemnation,  or  ransomed  to  the 
owner  (12). 

Section  3.  Military  Occupation  of  Teeritory. 
§  102.  Military  occupation.  Military  occupation  is 
justified  on  the  plain  ground  of  military  necessity,  and 
the  rights  of  the  occupying  authority  arise  out  of  this 
necessity  and  are  limited  by  it.  Rights  over  the  property 
of  the  enemy  in  such  territory  have  been  discussed,  and 
we  are  here  concerned  with  the  rights  and  duties  of  the 
occupying  state  with  regard  to  the  inhabitants  and  their 
government.  The  general  rules  governing  occupation 
were  embodied  in  the  provisions  adopted  at  the  Second 
Peace  Conference.  ''Territory  is  regarded  as  occupied 
when  it  finds  itself  placed  under  the  authority  of  the 
hostile  army.  The  occupation  includes  only  the  territory 
where  that  authority  is  established  and  in  a  position  to 
be  exercised.  The  lawful  authority  having  passed,  in  fact, 
into  the  hands  of  the  occupant,  he  will  take  all  steps  which 
depend  upon  him  with  a  view  to  re-establish  order,  as  far 
as  possible,  by  respecting,  save  in  case  of  absolute  impedi- 
ment, the  laws  in  force  in  the  country"  (13).  The  in- 
habitants are  bound  to  render  obedience  to  the  occupier 
in  regard  to  all  things  looking  to  the  better  government 
of  the  occupied  territory.  It  is  equally  clear,  however, 
that  summary  punishment  may  be  resorted  to  when  jus- 
tified by  military  necessity,  and  that  all  acts  injurious 
to  the  occupier  may  be  forbidden  on  the  same  ground. 


(12)  Bordwell,  Law  of  War,  223-6. 

(13)  Convention  concerning  the  Laws  and  Customs  of  War  on  Land, 
arts.  42,  43. 


WAR  87 

§103.  Duties  of  local  officers.  All  political  officers 
cease  in  the  performance  of  their  functions  with  the  be- 
ginning of  occupation,  but  mere  administrative  and  local 
officers,  on  the  other  hand,  are  considered  under  a  duty 
to  remain  at  their  posts,  since  the  welfare  of  the  inliabi- 
tants  and  of  the  public  at  large  demands  the  continuance 
of  the  ordinary  administrative  functions.  An  oath  of 
fidelity  may  be  required  of  these  officers  by  the  occupying 
authorities,  to  the  effect  that  they  will  not  use  such  of- 
fices to  the  injury  of  the  occupying  forces  (14). 

§104.  Limitations  of  occupying  authority.  **It  is  for- 
bidden for  a  belligerent  to  force  the  inhabitants  of  occu- 
pied territory  to  give  information  in  respect  to  the  op- 
posing belligerent  or  his  means  of  defence.  It  is  forbid- 
den to  constrain  the  population  of  an  occupied  territory 
to  recognize,  by  the  taking  of  an  oath,  the  power  of  the 
enemy"  (15).  They  cannot  require  officers  to  perform 
duties  contrary  to  their  allegiance,  or  attempt  to  compel 
the  inhabitants  to  do  any  positive  act  inconsistent  with  it. 
The  convention  also  provides  that  the  family  honor  and 
rights,  the  lives  of  individuals,  and  private  property  shall 
be  respected.  Pillage  is  prohibited.  Collective  penalties 
cannot  be  executed  against  the  whole  community  for  the 
acts  of  individuals,  where  the  community  is  not  collec- 
tively responsible  for  them.  The  justice  of  this  provision 
is  obvious  (16). 


(14)  Bordwell,  297-309. 

(15)  Convent,  concern.  War  on  Land,  arts.  44,  45. 

(16)  Ibid.,  46,  47,  50. 

Vol.  X— 8 


88  INTEPtXATIONAL  LAW 

Section  4.    Methods  of  Wakfake. 

§  105.  General  principles.  The  rights  of  belligerents 
in  regard  to  enemy  property,  enemy  persons,  and  occu- 
pied enemy  territory  have  been  considered  in  the  pre- 
ceding chapters.  We  are  now  to  consider  what  are  the 
means  of  defence  and  offence  by  which  military  opera- 
tions may  be  waged  and  the  rights  of  belligerents  exer- 
cised. Originally  all  means  of  offence  and  defence  were 
allowable  in  war,  but  advancing  civilization  has  placed 
substantial  limitations  upon  these  rights.  In  determin- 
ing the  rights  of  the  belligerent  in  regard  to  the  enemy, 
we  saw  the  underlying  principle  to  be  that  all  acts  against 
the  enemy  are  justified  to  just  the  extent  that  they  are  di- 
rectly effective  in  overcoming  the  resistance  of  the 
enemy,  and  that  there  must  be  some  reasonable  propor- 
tion between  the  amount  of  destruction  of  life  and  prop- 
erty involved  and  the  military  efficiency  of  the  measures 
employed  (17). 

§  106.  Forbidden  instruments  and  acts  of  warfare.  To 
employ  poison  or  poisoned  arms,  to  kill  or  wound  by 
treachery,  to  employ  arms,  projectiles,  and  substances 
which  are  calculated  to  cause  unnecessary  pain  are  all 
prohibited  (18).  The  declaration  of  St.  Petersburg  con- 
demns the  employment  of  arms  "which  uselessly  aggra- 
vate the  suffering  of  disabled  men  or  render  their  death 
inevitable."  The  purpose  of  injuring  combatants  is  only 
that  they  may  be  disabled  from  taking  further  part  in 
military  operations  of  the  enemy,  and  any  instruments 


(17)  Convention  concerning  the  Laws  and  Customs  of  War  on  Land, 
art.  25. 

(18)  Ibid.,  art.  2.3,  a,  b,  c,  e. 


WAR  89 

of  destruction  tliat  necessarily  do  more  tlian  maim  him, 
exceed  the  legitimate  ends  of  war. 

The  bombardment  by  naval  forces  of  undefended  towns 
is  forbidden,  with  the  provision  that  the  prohibition  shall 
not  prevent  the  destruction  of  military  works,  naval  es- 
tablishments, etc.,  which  would  be  of  aid  to  the  enemy, 
care  being  required,  however,  to  see  that  the  other  parts 
of  the  town  shall  be  damaged  as  little  as  possible.  In  all 
cases  of  bombardment  where  military  necessity  permits, 
notice  must  be  given  to  the  authorities,  and  great  care 
exercised  not  to  destroy  or  injure  buildings  devoted  to 
science,  charity,  hospital,  and  similar  purposes  (19).  The 
employment  of  automatic  submarine  contact  mines  was 
discussed  at  the  Hague,  and  regulations  adopted  which 
have  for  their  main  puropse  the  protection  of  innocent 
vessels  of  coimnerce  from  such  dangers  (20).  The  de- 
struction of  enemy  property  is  prohibited,  unless  it  is 
demanded  by  strict  military  necessity.  The  Second  Peace 
Conference  agTeed  upon  the  prohibition  of  discharging 
of  explosives  from  balloons  for  a  period  extending  to  the 
next  peace  conference. 

§  107.  Use  of  deceit  and  spies.  Deceit  is  a  proper  and 
legal  method  for  an  enemy  to  surprise  or  mislead  the 
belligerent,  but  this  is  always  subject  to  the  qualification 
that  the  flag  of  truce  or  Eed  Cross  must  never  be  used 
for  that  purpose.  The  insignia  of  the  enemy  may  be  used 
to  approach  or  gain  a  point  of  advantage,  but,  before  the 


(19)  Convention  couoerniug  the  Bombardment  of  Undefended  Towns 
by  Naval  Forces,  arts.  1-6. 

(20)  Convention  restricting  the  Employment  of  Submarine  Mines 
and  Torpedoes. 


90  INTERNATIONAL  LAW 

fighting  begins,  the  enemy  must  display  their  true  iden- 
tity (21).  Spies  are  those  who  invade  the  lines  of  the 
enemy  in  disguise  for  the  purpose  of  getting  information 
to  carry  back  with  them.  If  captured  before  they  make 
their  escape  to  their  own  forces,  they  may  be  put  to  death, 
but  only  after  trial.  Persons  sailing  over  the  camp  of  the 
enemy  in  a  balloon  are  not  considered  spies  (22). 

§  108.  Privateering.  A  privateer  is  a  private  armed 
vessel,  owned  and  officered  by  private  individuals  but  act- 
ing under  the  authority  of  the  state,  which  is  sent  forth 
in  time  of  war  to  prey  upon  the  commerce  of  the  enemy, 
and  whose  compensation  consists  in  the  prizes  captured. 
The  authority  given  to  such  vessels  is  given  by  letters  of 
marque.  The  right  to  use  privateers  is  still  recognized, 
although  there  is  a  growing  demand  for  their  abolition. 
The  declaration  of  Paris,  to  which  all  the  larger  powers 
with  the  exception  of  Spain,  Mexico,  and  the  United 
States  were  parties,  provided  that  "privateering  is  and 
remains  abolished."  The  Second  Peace  Conference  also 
adopted  provisions  for  the  abolition  of  privateering  (23). 

§  109.  Volunteer  navy.  Privateers  must  be  distin- 
guished however  from  such  vessels  as  compose  the  vol- 
unteer navy  of  Russia,  where  vessels  privately  owned 
and  manned  are  incorporated  into  the  regular  navy  and 
commanded  by  commissioned  officers,  though  in  time  of 
peace  they  fly  the  commercial  flag  of  the  country  and  are 
engaged  in  private  business.    They  are,  however,  a  part 


(21)  Bordwell,  283-4. 

(22)  Hall,  539-541. 

(23)  Convention  concern,  the  Transformation  of  Merchant  Vessels 
into  ship  of  War,  arts.  1-7. 


WAE  91 

of  the  navy,  under  its  discipline,  and  therefore  their  pro- 
priety cannot  well  be  questioned  (24). 

§  110.  Punishment  of  offenders  against  laws  of  war. 
The  belligerent  undoubtedly  has  the  right  of  punishing 
enemy  persons  coming  into  their  control  who  have  vio- 
lated the  laws  of  war,  unless  they  were  acting  under  the 
direct  command  of  an  officer,  in  which  case  the  officer 
may,  if  captured,  be  punished  for  the  act.  Only  breaches 
of  universally  recognized  laws  should  be  punished,  how- 
ever, such  as  poisoning  wells,  assassination,  abusing  the 
use  of  the  flag  of  truce,  using  forbidden  weapons,  and 
similar  offences.  Hostages  are  many  times  seized  by  the 
belligerent  to  secure  the  performance  of  obligations  (25). 

§  111.  Non-hostile  relations.  There  are  certain  occa- 
sions during  war  when  it  becomes  to  the  mutual  advantage 
of  both  belligerents  to  establish  some  form  of  non-hostile 
intercourse  between  them.  Consequently  such  forms  of 
intercourse  are  not  only  permissible,  but  are  carefully 
guarded  in  such  a  manner  as  to  make  them  as  available 
as  possible  without  danger  to  the  parties  concerned.  The 
law  regarding  such  intercourse  under  a  flag  of  truce  is 
well  stated  in  the  provisions  adopted  by  the  Hague  Con- 
ference  as  follows:  ''An  individual  who  is  authorized  by 
one  belligerent  to  enter  into  communication  with  the 
others,  and  who  presents  himself  with  a  white  flag,  is  re- 
garded as  the  bearer  of  a  flag  of  truce.  He  has  the  qual- 
ity of  inviolability,  as  have  the  trumpeter,  bugler,  or 


(24)  Hall,  527-9 

(25)  Instruction  for  Government  of  Armies  of  T'.  S.  in  Field,  art. 
27,  28. 


92  INTEEXATIOXAL  LAW 

drummer,  and  the  flag  bearer  and  interpreter  who  ac- 
Gompany  him.  The  commander  to  whom  the  flag  of  truce 
is  sent  is  not  obliged  to  receive  it,  under  all  circumstances. 
He  may  take  all  necessary  measures  to  prevent  the  bearer 
of  the  flag  from  profiting  by  his  mission  to  obtain  infor- 
mation. He  has  the  right,  in  case  of  abuse,  to  detain  the 
bearer  of  the  flag  temporarily.  The  bearer  of  the  flag  of 
truce  forfeits  his  quality  of  inviolability,  if  it  is  proved, 
in  a  positive  and  unexceptionable  manner,  that  he  has 
profited  by  his  privileged  jDosition  to  provoke  or  to  com- 
mit an  act  of  treachery"  (26).  Suspension  of  arms  and 
armistices,  cartels,  cajDitulations,  and  passports,  are  other 
forms  of  non-hostile  intercourse  between  belligerents 
which  are  guarded  by  the  rules  of  war  against  abuse. 

Section  5.  Termination  of  War. 
§  112.  Modes  of  termination  of  war.  War  may  be 
terminated  by  mere  cessation  of  hostilities,  by  subjuga- 
tion, by  proclamation  (if  a  civil  war),  and  by  treaty  of 
peace.  In  the  first  case  the  effect  of  cessation  of  hostili- 
ties is  merely  to  leave  the  belligerents  in  the  positions 
Ihey  occupy  at  the  time  hostilities  cease.  Subjugations 
must  be  distinguished  from  mere  conquest.  The  latter  is 
the  first  step  in  subjugation,  which  may  be  defined  as  "ex- 
termination in  war  of  one  belligerent  by  another,  through 
annexation  of  the  former's  territory  after  conquest,  the 
enemy  forces  lia\dng  been  annihilated"  (27).  In  the  case 
of  the  Civil  war  in  the  United  States,  the  courts  have  held 


(20)     Convention  concerning  Laws  a.id  Customs  of  War  on  Laud, 
Ch.  ITT. 

(27)     2  Oppenheim,  278. 


V/AR  93 

that  its  termination  was  determined  by  the  proclamation 
of  the  President  (28). 

§  113.  Effect  of  treaty  of  peace.  Most  wars  are  termi- 
nated by  a  treaty  of  peace,  and  while  this,  like  other 
treaties,  must  be  ratified  before  it  becomes  binding  upon 
the  states,  it  is  binding  at  once  to  the  extent  that  hostili- 
ties must  cease  with  the  signing  of  the  treaty,  unless  an- 
other time  is  placed  in  the  treaty  as  the  date  for  the 
cessation  of  hostilities.  In  this  way  the  treaty  acts  as 
an  armistice,  if  none  has  been  concluded  pending  the 
adoption  of  the  treaty,  until  it  has  been  duly  ratified  or 
rejected.  Unless  expressly  provided  otherwise,  peace 
commences  with  the  signing  of  the  treaty,  but,  in  cases  of 
world  wide  wars,  it  has  been  customary  in  the  past  to 
stipulate  different  times  at  which  the  treaty  would  go 
into  effect  at  different  places. 

The  main  effect  of  the  treaty  is  the  restoration  of  all 
peaceful  relations,  and  the  interdiction  of  all  hostile 
operations.  By  the  principle  of  ''uti  possidetis,"  unless 
the  treaty  specifies  otherwise,  everything  remains  just  as 
it  did  at  the  time  peace  is  concluded.  Thus,  property  in 
the  occupation  of  the  other  belligerent,  if  not  specified 
otherwise  in  the  treaty,  becomes  the  permanent  posses- 
sion of  the  occupying  power.  In  the  absence  of  contrary 
provisions,  the  treaty  gives  complete  amnesty  for  all 
crimes  against  the  laws  of  war  committed  by  the  state 
or  individuals  during  the  war. 

§  114.  Postliminium.  By  the  principle  of  postliminium 
there  is  ''a  revival  of  the  previous  conditions  of  things" 


(28)     The  Protector,  12  Wall.  700. 


94  INTERNATIONAL  LAW 

after  cessation  of  hostilities,  except  where  the  conditions 
changed  were  the  result  of  acts  which  the  belligerent  had 
a  legal  right  to  perform.  Thus,  during  the  Franco- 
German  war,  the  German  government  sold  timber  off 
lands  belonging  to  the  French,  which  they  were  holding 
by  military  occupation.  When  the  occupation  ceased, 
the  purchasers  of  the  timber  were  prevented  from  taking 
it  by  the  principle  of  postliminium,  for  Germany  had  no 
right  to  confiscate  or  alien  the  timber  according  to  the 
laws  of  war,  and  therefore,  when  it  came  back  into  French 
possession,  the  previous  condition  of  things  revived,  shut- 
ting off  the  rights  of  the  purchasers  of  the  land  in  favor 
of  the  original  owners  (29).  Had  the  German  govern- 
ment acquired  the  title  according  to  the  laws  of  war,  then 
the  theory  of  postliminium  would  have  had  no  application. 


(29)     2  Oppenheim,  295-6. 


NEUTKALITY  95 


CHAPTER  VI. 

NEUTRALITY. 

Section  1.    Between  Belligerent  and  Neutral  States. 

§  115.  Definition  of  neutrality.  Neutrality  consists  in 
the  non-participation  by  one  state  in  a  war  that  is  being 
carried  on  between  two  or  more  other  states,  and  in  an 
impartiality  of  conduct  towards  all  belligerents.  A  per- 
manent neutrality  is  the  term  applied  to  a  state  that  has 
been  stripped  of  that  part  of  its  sovereignty  which  en- 
titles it  to  engage  in  offensive  warfare.  An  armed 
neutrality  is  a  form  of  alliance  between  two  or  more 
states  for  the  purpose  of  protecting  ce.rtain  neutral  rights 
which  are  publicly  proclaimed.  With  these  two  special 
forms  of  neutrality  we  are  not  here  concerned. 

§  116.  XPnderlying  principle.  The  laws  of  neutrality 
have  been  greatly  augmented  and  changed  within  the  last 
century,  with  the  idea  of  clearly  defining  the  rights  of 
neutrals  and  their  subjects  as  against  belligerents,  and 
of  determining  reasonable  regulations  for  the  conduct 
of  neutrals  in  their  relations  with  belligerents.  The  un- 
derlying principle  seems  to  be  the  right  of  every  inde- 
pendent state  to  remain  in  peace  while  other  states  are 
engaged  in  war,  and  the  corresponding  rights  of  a  bel- 
ligerent to  demand  that  no  state,  not  a  party  to  the  con- 


96  INTERNATIONAL  LAW 

flict,  shall  participate  either  directly  or  indirectly  in  the 
contest.  In  recent  years  it  has  become  the  custom  for 
neutral  states  to  issue  proclamations  of  neutrality,  or 
give  expression  to  it  in  some  public  form  upon  the  out- 
break of  war. 

§  117.  Inviolability  of  neutral  territorial  jurisdiction. 
The  modern  tendency  in  the  laws  governing  neutrality 
is  to  remove  the  neutral  as  far  as  possible  from  all  incon- 
veniences resulting  from  belligerent  conditions,  and  no 
principle  of  the  law  is  more  firmly  settled  than  the  in- 
violability of  neutral  territorial  jurisdiction.  The  Second 
Peace  Conference,  in  adopting  rules  and  regulations  con- 
cerning neutrality,  expressly  recognized  the  inviolability 
of  the  neutral's  territory.  The  passage  of  troops  and 
convoys  through  neutral  territory,  the  formation  of  army 
corps  and  the  establishment  of  recruiting  stations,  the 
bringing  of  prizes  into  neutral  waters,  and  similar  acts 
violating  the  neutral's  jurisdictional  rights  are  forbidden 
to  belligerents;  and  it  is  further  provided  that  the  en- 
forcement of  these  prohibitions  by  force  cannot  be  con- 
sidered a  hostile  act  by  the  offending  belligerent  (1). 

§  118.  Local  neutral  regulations.  By  the  laws  of  neu- 
tralitj^,  considerable  is  left  to  the  neutral  state  in  the  way 
of  determining  its  relations  with  the  belligerents.  The 
convention  regarding  neutrality  at  the  Second  Peace  Con- 
ference expressly  recognized  the  right  of  the  state  to 
make  its  own  neutral  regulations,  regarding  such  mat- 


(1)  Convention  concerning  the  Rights  and  Duties  of  Neutral  Powers 
and  Individuals  in  Warfare  on  Land,  arts.  1,  2,  3,  4,  10;  Hague  Conven- 
tion concerning  the  Rights  and  I^uties  of  Neutral  Powers  in  Maritime 
Warfare,  arts.  1-5,  12,  IG. 


NEUTEALITY  97 

ters  as  the  length  of  time  belligerent  war  vessels  may  re- 
main within  territorial  waters,  the  order  in  which  vessels 
of  opposing  belligerents  may  be  compelled  to  leave  when 
several  are  in  the  port  of  the  neutral,  the  regulations  re- 
garding the  amount  of  coal  to  be  supplied  to  belligerents, 
and  the  conditions  under  which  belligerents  may  be  al- 
lowed the  use  of  the  regTilar  telegraph  and  telephone 
lines.  The  conventions  provided  in  most  instances  the 
rules  to  be  followed  in  each  case,  where  the  neutral  had 
no  regulations  of  its  own.  In  the  making  and  enforcing 
of  such  regulations,  however,  international  law  demands 
that  the  neutral  shall  do  so  with  exact  impartiality  to  all 
belligerents  (2). 

§  119.  Neutral  must  prevent  assistance  of  belligerents 
in  its  territory.  Since  the  territorial  jurisdiction  of  the 
neutral  must  be  held  inviolable  by  the  belligerents,  there 
is  a  clear  responsibility  and  duty  on  the  part  of  the 
neutral  to  see  that  its  territory  is  not  made  use  of,  to  the 
injury  of  the  belligerents,  which  duty  must  be  exercised 
with  due  care  and  diligence.  It  is  under  obligations  to 
see  that  the  belligerent  powers  live  up  to  their  obliga- 
tions not  to  violate  its  jurisdictional  rights  by  the  estab- 
lishing of  prize  courts,  the  carrying  on  of  hostilities,  and 
the  performance  of  similar  acts,  upon  the  territory  of  the 
neutral.  It  was  formerly  held  that  such  violations  of  its 
jurisdiction  could  be  allowed  by  the  neutral,  if  allowed 
to  both  states  with  impartiality,  but  the  rule  as  it  now 
exists  clearly  prohibits  the  neutral  from  consenting  to 
any  violation  of  its   territorial  jurisdiction,  which  is 

(2)     Ibid. 


98  INTERNATIONAL  LAW 

directly  or  indirectly  connected  with  tlie  waging  of  hos- 
tilities. The  neutral  must  forbid  the  passage  of  bel- 
ligerent troops  through  its  territory,  and,  should  they 
come  within  its  jurisdiction,  the  neutral  must  intern  them 
as  far  as  possible  from  the  basis  of  military  activities. 
Prisoners  of  war  brought  with  them  must  be  released. 
The  passage  of  sick  and  wounded  may  be  allowed  under 
certain  conditions,  but  they  must  be  closely  inspected  by 
the  neutral  power. 

§  120.  Same:  Equipment  of  soldiers  and  ships.  The 
neutral  must  also  see  that  no  expeditions  are  fitted  out 
upon  its  territory  or  soldiers  recruited,  although  it  is 
under  no  obligations  to  prevent  persons  from  leaving  its 
territory  to  engage  in  hostilities  with  the  belligerents,  or 
to  prohibit  its  citizens  from  making  and  selling  ships  of 
war  and  ammunition  to  belligerents,  so  long  as  it  is  a 
matter  of  regular  commerce  and  not  done  to  the  special 
order  of  the  enemy.  The  Peace  Conference  made  the 
following  provisions  regarding  the  equipment  of  ships 
for  the  enemy :  ' '  A  neutral  government  is  bound  to  use 
all  the  means  at  its  disposal  to  prevent  the  equipment, 
within  its  jurisdiction,  of  any  ship  which  it  has  a  reason- 
able ground  to  believe  is  intended  to  cruise  or  take  part 
in  hostile  operations  against  a  power  with  which  it  is  at 
peace.  It  is  also  bound  to  use  the  same  diligence  to  pre- 
vent the  departure  from  its  jurisdiction  of  any  vessel 
destined  to  cruise  or  take  part  in  such  hostile  operations, 
and  which  shall  have  been  adapted,  wholly  or  in  part, 
to  war-like  use  within  such  jurisdiction  "  ( 3 ) .    Belligerent 


(?,)     Hague  Convention  concerning  the  Rights  and  Duties  of  Neutral 
Powers  in  Maritime  Warfare,  art.  8. 


NEUTKALITY  99 

vessels  can  only  make  such  repairs  within  territorial 
waters  as  are  necessary  to  make  navigation  reasonably 
safe,  and  nothing  can  be  added  to  their  military  equip- 
ment or  supplies. 

§  121.  Neutral  must  render  no  direct  assistance.  It  is 
obvious  from  what  has  already  been  said,  that  a  neutral 
is  forbidden  to  render  any  active  assistance  whatsoever 
to  the  belligerents.  Even  where  by  treaty  stipulation  it 
has  been  previously  arranged  that  in  case  of  war  the 
neutral  shall  render  certain  assistance  to  one  of  the  bel- 
ligerents, the  rendering  of  such  assistance  is  illegal,  for 
a  treaty  stipulation  cannot  destroy  the  rights  of  a  third 
power.  A  neutral  state  cannot  therefore  furnish  any 
military  assistance  of  any  kind  to  the  belligerent.  This 
is  generally  held  to  prohibit  the  loan  of  money  by  the 
neutral  state.  As  before  stated,  however,  this  obliga- 
tion does  not  extend  to  prohibiting  private  citizens  from 
doing  these  acts  as  incidental  to  regular  commerce  and 
business. 

§  122.  Right  of  asylum.  It  is  not  the  duty  of  a  neutral 
to  admit  troops,  war  property,  etc.,  within  its  territory, 
but,  if  the  neutral  sees  fit  to  do  so,  it  is  then  under  duty 
to  see  that  such  troops  are  disarmed,  that  they  are  in- 
terned or  paroled  until  the  close  of  the  war,  and  that  the 
property  is  kept  there  until  the  end  of  hostilities ;  other- 
wise the  territory  of  the  neutral  would  become  a  base 
of  military  operations  for  the  belligerent  (4). 
Section  2.    Blockade. 

§  123.    Definition  of  blockade.    The  right  to  blockade 


(4)     2  Oppenheim,  361-368. 


100  INTEENATIONAL  LAW 

is  the  right  of  a  belligerent  to  exclude  all  trade  or  inter- 
course by  water  from  the  port  of  the  enemy.  It  is  not 
confined  to  a  seaport,  but  extends  to  any  avenue  of  water 
communication  such  as  rivers,  bays,  or  mere  marginal 
seas  of  the  enemy  territory.  It  is  generally  held,  how- 
ever, that  it  will  not  extend  to  international  rivers,  where 
all  the  states  situated  on  the  river  are  not  enemies.  Thus, 
when  a  United  States  cruiser  captures  a  boat  on  the 
Mexican  shore  of  the  Rio  Grande  river,  after  having  de- 
clared the  whole  coast  of  the  southern  states  under  block- 
ade, the  boat  was  released  on  the  ground  that  the  blockade 
could  not  be  applied  against  commerce  with  a  neutral  (5). 
§  124.  When  effective?  Continental  writers  contend 
that  a  blockade  cannot  be  established  until  notification 
has  been  given,  but  the  United  States  and  England  hold  a 
contrary  view,  that  its  mere  establishment  is  sufficient 
to  begin  a  blockade,  although  notice  is  necessary  before 
condemnation  for  breach  of  bloakade  can  take  place  (6). 
By  the  declaration  of  Paris  a  ''blockade  to  be  binding 
must  be  effective."  Just  what  is  the  test  of  effectiveness 
has  never  been  determined,  though  the  tendency  since 
the  American  Civil  war  seems  to  be  in  favor  of  a  liberal 
construction,  holding  that  a  blockade,  which  may  render 
an  effort  to  "run  the  blockade"  reasonably  dangerous,  is 
sufficient.  This  is  the  rule  followed  by  England  and 
America  (7),  though  continental  authorities  tend  to  a 
more  strict  construction.  A  blockade  terminates  when 
the  vessels  enforcing  it  are  withdrawn,  or  when  they  are 


(5)  The  Peterhof,  5  Wallace.  40. 

(6)  The  Vrouw  .Tudith,  1  Rob.  150;  U.  S.  Naval  Code,  art.  37. 

(7)  The  Franciska,  Spinks,  Trize  Cases,  115. 


NEUTEALITY  101 

driven  away  by  the  enemy,  however  short  their  absence. 
A  temporary  absence,  however,  when  due  to  the  stress 
of  weather,  does  not  even  suspend  the  blockade  (8).  When 
the  blockading  fleet  is  away  in  pursuit  of  a  prize,  so  that 
a  neutral  vessel  might  reasonably  suppose  that  abandon- 
ment had  taken  place,  the  ship  may  enter  without  violat- 
ing the  blockade. 

§  125.  Breach  of  blockade.  A  breach  of  blockade  con- 
sists in  entering  or  leaving,  or  in  attempting  to  enter  or 
leave  the  blockaded  place,  and,  by  the  practices  of  Eng- 
land and  the  United  States,  in  doing  that  which  evidences 
an  intent  to  violate  the  blockade.  All  states  hold  that 
notice  of  some  kind  to  the  blockade  runner  is  essential 
before  a  breach  of  blockade  may  be  punished.  France  and 
some  other  countries  hold  that  each  vessel  must  have 
personal  notice  from  one  of  the  blockading  squadron  be- 
fore it  can  suffer  the  penalty  for  breach  of  blockade, 
while  England  and  the  United  States  hold  that  merely 
constructive  notice  is  sufficient. 

By  the  English  and  American  rule  an  attempt  to  run 
a  blockade  is  held  to  exist,  where  a  vessel  is  found  near 
a  blockaded  port  or  steering  for  it,  even  though  its  papers 
show  that  another  port  is  its  real  destination,  or  where 
a  ship  starts  on  a  voyage  destined  to  a  blockaded  port 
of  which  the  vessel  has  either  constructive  or  actual 
notice  (9).  By  the  doctrine  of  continuous  voyage,  this 
rule  is  extended  still  further  by  holding,  that,  when  ves- 
sels leave  for  a  neutral  port  with  the  intention  of  having 

(8)  The  Hoffnung,  6  C.  Rob.  Adm.  116. 

(9)  The  Betsy,  1  Rob.  332. 


102  INTEENATIONAL  LAW 

the  goods  reshipped  from  there  into  the  blockaded  port, 
it  is  an  attempt  to  run  the  blockade  from  the  time  the 
vessel  leaves  for  the  neutral  port.  During  the  Civil  war, 
the  United  States  applied  the  doctrine  of  continuous 
voyages  in  cases  where  the  ultimate  destination  of  goods 
was  a  blockaded  port,  although  unknown  to  carriers  at 
the  time  (10).  When  a  vessel  enters  a  blockaded  place 
to  secure  repairs  or  provisions,  or  is  forced  in  by  stress 
of  weather,  there  is  no  breach  of  the  blockade  (11).  War- 
ships of  neutrals  are  generally  allowed  to  enter  as  a 
matter  of  courtesy. 

§  126.  Same  (continued).  A  ship  may  be  captured  for 
breach  of  blockade  any  time  before  the  completion  of  the 
voyages  during  which  the  breach  occurred  (12).  The 
crew  cannot  be  held  as  prisoners  of  war,  but  may  be 
detained  as  witnesses  in  condemnation  proceedings. 
The  penalty  is  confiscation  of  boat  and  cargo,  where 
both  are  owned  by  the  same  parties,  or  where  the  cargo 
is  made  up  of  contraband,  or  where  the  owners  of  the 
cargo  knew  of  the  blockade  (13).  Where  the  owner  of 
the  cargo  did  not  know  of  the  blockade,  or  where  the 
ship  deviated  from  its  course  to  the  blockaded  place,  only 
the  ship  is  condemned.  Where  a  ship  is  captured  carry- 
ing goods  whose  ultimate  destination  is  a  blockaded  port, 
but  where  the  ship  is  only  bound  for  a  neutral  port  and 
has  no  knowledge  of  the  ultimate  destination  of  the  goods, 
only  the  cargo  will  be  condemned  (14). 


(10) 

The  Bermiula.  3  Wall.  514. 

(11) 

The  Fortuna,  5  Rob.  27. 

(12) 

U.  S.  Naval  War  Code.  art.  44. 

(13) 

The  Mercurius,  1  Rob.  SO. 

(14) 

The  Springbok,  5  Wall.  1. 

NEUTRALITY  103 

Section  3.     Contraband  and  Unneutral  Service. 

§  127.  Definition  of  contraband.  Contraband  of  war 
consists  of  those  commodities  which  are  necessary  or  use- 
ful in  the  prosecution  of  hostilities.  There  are  two  kinds 
of  contraband  as  it  is  generally  defined,  absolute  contra- 
band and  conditional  contraband.  The  first  consists  in 
articles  which  by  their  nature  are  primarily  and  or- 
dinarily destined  for  use  in  war,  such  as  arms,  ammuni- 
tion, and  military  and  naval  equipment.  Conditional  con- 
traband consists  of  those  articles  which  by  their  character 
are  not  ordinarily  for  use  in  war,  but  which  under  cer- 
tain circumstances  may  become  needful  for  the  prosecu- 
tion of  war.  Horses,  provisions,  and  coal  are  instances 
of  this  class.  To  enumerate  or  to  draw  a  distinct  line 
between  the  two  classes  of  contraband  is  impossible. 
Just  what  constitutes  contraband  has  been  the  subject 
of  many  treaty  stipulations  between  nations.  Ordinarily 
the  determination  of  what  is  contraband  is  left  to  the 
belligerents  to  determine  in  each  case,  though  of  course 
this  discretion  must  be  exercised  in  a  reasonable  man- 
ner, and,  if  not,  it  may  become  a  just  ground  of  complaint 
by  the  neutral.  Whatever  may  be  the  nature  of  articles, 
however,  they  must  be  destined  for  use  of  a  belligerent 
in  war,  before  they  can  be  so  considered  (15).  Articles 
which  are  carried  for  the  use  of  the  boat  only  are  not 
contraband. 

§  128.  Carriage  of  contraband.  The  carriage  of  con- 
traband is  the  transportation  of  contraband  to  an  enemy 
port  or  vessel,  and,  by  the  more  liberal  construction  of 


(15)     2  Oppenheim,  429. 

Vol.  X— » 


104  INTEENATIONAL  LAW 

England  and  the  United  States,  it  is  the  transportation 
of  contraband  whose  ultimate  destination  is  the  ports  or 
ships  of  the  enemy.  Both  American  and  English  courts 
have  adopted  the  theory  of  continuous  voyage  (§  125, 
above)  in  regard  to  contraband,  both  where  the  goods 
are  to  be  re  shipped  in  the  same  boat  for  the  enemy  des- 
tination, and  where  they  are  to  be  shipped  in  another 
boat,  holding  that  they  are  liable  for  seizure  for  contra- 
band from  the  time  they  start  upon  the  first  voyage,  whose 
ultimate  destination  is  the  port  of  the  enemy  (16) .  When 
the  ship  has  deposited  her  cargo  of  contraband,  she  is 
then  no  longer  engaged  in  an  illegal  transaction  and 
consequently  cannot  be  seized  upon  her  return  voyage; 
except  in  the  cases  where  the  contraband  was  carried 
under  false  papers  (17). 

§  129.  Same:  Penalty.  In  regard  to  the  penalty  for 
carrying  contraband,  the  prize  courts  of  the  different 
countries  hold  different  and  conflicting  views,  the  only 
one  common  view  being  held  is  that  the  contraband  goods 
themselves  are  subject  to  confiscation,  except  where  ves- 
sels carrying  contraband  sail  before  the  beginning  of  the 
war  and  have  received  no  actual  notice  of  the  existence 
of  hostilities  (18).  The  rules  which  prevail  in  the  United 
States  and  England  provide  for  the  confiscation  of  both 
ship  and  goods,  where  they  are  both  owned  by  the  same 
owner,  or  where  the  owner  of  the  ship  has  knowledge  of 
the  fact  that  it  is  engaged  in  carrying  contraband.  Such 
part  of  the  innocent  cargo  as  belongs  to  the  owner  of 


(16)  The  Peterhof,  5  Wall.  49. 

(17)  Perils,  sec.  46. 

(18)  The  Nancy,  3  Rob.  122. 


NEUTKALITY  105 

the  contraband  is  also  subject  to  confiscation.  Vessels 
are  confiscated  when  found  carrying  contraband  under 
false  papers  (19).  In  cases  where  the  goods  concerned 
are  only  conditional  contraband,  it  is  the  English  prac- 
tice to  exercise  the  right  of  preemption,  by  purchasing 
the  goods  in  question  at  their  mercantile  value  plus  a 
profit  of  10%.    The  boat  is  allowed  to  go  free. 

§  130.  Unneutral  services.  A  case  somewhat  similar 
to  carrying  of  contraband  is  that  of  carrying  persons  or 
messages  for  the  enemy.  It  differs  from  contraband  in 
that  it  involves  direct  service  of  the  enemy,  while  con- 
traband does  not.  Belligerents  have  the  right  to  punish 
neutrals  for  carrying  to  or  from  the  enemy  ports  mem- 
bers of  the  armed  forces  of  the  state,  persons  who  are 
going  to  the  state  to  become  members  of  the  armed  forces, 
and  other  important  persons  such  as  public  officers,  who 
might  be  made  prisoners  of  war  if  captured  by  the  enemy. 
There  is  an  exception,  however,  in  favor  of  diplomatic 
agents,  since  the  diplomatic  relations  of  neutrals  with 
the  belligerents  should  not  be  interrujDted.  They  may 
also  be  punished  for  the  carrying  of  dispatches  of  the 
belligerent  governments  ha^dng  to  do  with  military 
affairs,  although  dispatches  of  the  government  to  other 
governments  or  to  diplomatic  agents  are  exempted. 
There  is  also  a  tendency  to  hold  mail  bags  free  from  in- 
terference, but  there  is  yet  no  such  established  doctrine. 

Vessels  cannot  be  punished  for  such  acts,  however, 
unless  they  have  knowledge  of  the  nature  of  the  persons 
they  are  carrying,  or  of  the  dispatches  on  board,  or  unless 


(19)     Holland,  Prize  Laws,  82-7. 


106  INTERNATIONAL  LAW 

they  are  in  the  direct  service  of  the  enemy  (20).  The 
penalty  is  confiscation  of  the  vessel,  and  the  cargo  also 
where  the  cargo  is  owned  by  the  owner  of  the  vessel  (21). 
The  crew  may  be  taken  as  prisoners  of  war. 

§  131.  Right  of  visit  and  search.  The  right  of  visit  and 
search  is  the  right  of  belligerent  vessels  to  stop  private 
vessels  of  the  neutral,  when  outside  of  neutral  waters, 
for  the  purpose  of  examining  their  papers  and  cargo 
with  a  \iew  to  seeing  that  the  rules  of  neutrality  are  being 
observed.  Only  a  regularly  commissioned  public  vessel 
of  the  belligerent  has  the  right  of  visit  and  search,  ajid 
all  private  vessels  of  neutrals,  when  outside  of  neutral 
waters,  are  subject  to  that  right,  though  public  vessels 
are  not.  It  has  been  contended  by  some  states  that,  when 
a  neutral  vessel  is  under  the  convoy  of  a  public  armed 
ship,  there  is  no  right  of  visit  and  search;  but  that  the 
presence  of  the  armed  neutral  vessel  is  sufficient  evidence 
and  guarantee  of  the  neutral  state  that  there  is  no  evasion 
of  neutral  obligations.  This  right  has  been  seriously  con- 
tested at  times,  and  has  never  been  fully  accepted  by 
all  nations. 

The  vessels  may  be  captured  if  they  resist  visit  and 
search,  or  if  they  are  under  the  convoy  of  a  belligerent 
war  vessel.  Spoliation  of  papers,  and  double  or  false 
papers  give  the  right  to  seize  the  vessel  and  bring  it  in 
to  trial,  which,  if  the  evidence  is  sufficient,  may  result  in 
its  confiscation  (22). 


(20)  The  Atlanta,  6  Rob.  440. 

(21)  The  Hope,  6  Rob.  463. 

(22)  Livingston  v.  Md.  Ins.  Co.,  6  Cranch,  274;  The  St.  Nicholas, 
1  Wheat.  417. 


DAMAGES 


BY 


ARTHUR  MARTIN  CATHCART, 

A.   B.    (Leland    Stanford   Jr.    University) 

Professor  of  Law,  Leland  Stanford  Jr.  University. 


CHAPTER  I. 
PRELIMINARY  TOPICS. 

Section  1.    General  Survey. 

§  1.  Damages  the  ordinary  redress  afforded  by  a  court 
of  law.  Every  plaintiff  goes  into  court  with  a  prayer 
for  some  sort  of  relief.  His  prayer  may  be  that  the  court 
prevent  an  injury  that  is  merely  threatened,  or  that  it 
grant  a  remedy  for  an  injury  that  has  already  occurred. 
If  he  asks  for  the  prevention  of  an  injury,  he  must  resort 
to  a  court  of  equity,  which,  in  a  proper  case,  may  pro- 
ceed by  injunction ;  a  court  of  law  has  no  power  to  prevent 
the  doing  of  a  wrong,  but  acts  only  after  a  wrong  has 
been  done.  See  the  articles  on  Equity  and  Trusts  in 
Volume  VI  of  this  work.     The  defendant  may  threaten 


108  DAMAGES 

to  pollute  the  plaintiff's  spring,  to  fell  his  shade-trees, 
or  to  injure  his  business  by  intimidating  his  employees; 
the  law  court  can  do  nothing  until  the  threat  has  been  car- 
ried into  execution ;  equity  alone  can  afford  preventive  re- 
lief. If,  on  the  other  hand,  the  plaintiff  seeks  a  remedy  for 
an  injury  that  has  been  done,  the  nature  of  the  remedy 
available  will  also  depend  upon  the  court  whose  action  he 
asks.  The  law  court  is  restricted  to  remedial  relief, 
but  the  court  of  equity  may,  in  a  case  within  its  juris- 
diction, afford  either  preventive  or  remedial  relief  as  the 
facts  warrant.  And  the  remedial  relief  of  a  court  of  law 
differs  from  that  of  a  court  of  equity.  Equity  affords 
specific  relief;  it  commands  a  party  to  do  or  not  to  do 
a  particular  thing,  to  perform  a  contract,  to  abate  a 
nuisance,  to  surrender  a  document,  to  execute  a  trust  or 
what  not,  and  obedience  is  enforced  under  penalty  of 
imprisonment  for  contempt  of  court.  Not  so  with  a  court 
of  law;  it  seldom  affords  specific  relief.  Barring  a  few 
exceptional  cases,  including  the  specific  recovery  of  real 
and  personal  property  under  some  circumstances,  the  law 
court  is  confiLned  to  the  awarding  of  pecuniary  compensa- 
tion as  its  sole  form  of  redress.  This  compensation  is 
known  as  damages.  A  legal  judgment  for  damages  is 
enforced,  not  by  process  directed  against  the  person,  but 
by  a  writ  of  execution  under  which  the  sheriff  may  levy 
upon  the  judgment  debtor's  property,  sell,  and  convert 
it  into  money  for  the  satisfaction  of  the  judgment.  Not 
only  is  the  law  court  practically  restricted  to  the  award- 
ing of  damages ;  the  awarding  of  damages  is  practically 
restricted  to  the  law  court,  for  it  is  only  in  exceptional 


PRELIMINARY  109 

cases  that  a  court  of  equity  will  decree  the  payment  of 
damages.  Thus,  we  may  fairly  say  that  damages  are  the 
peculiar  as  well  as  the  ordinary  redress  obtainable  in  a 
court  of  law.  The  term  ''damages"  has  been  well  de- 
fined by  one  court  as  ' '  the  pecuniary  compensation  for  an 
injury  recovered  in  an  action  at  law"  (1). 

§  2.  Damages  distinguished  from  injury  and  damage. 
The  term  ''damages"  needs  to  be  distinguished  from  two 
others  with  which  it  is  often  confounded  and  used  inter- 
changeably. In  their  popular  signification  the  words 
"damage"  and  "injury"  are  closely  sjTionymous,  alike 
indicating  hurt,  harm,  or  loss.  The  word  "damage"  in 
its  legal  sense  retains  this  meaning.  One  court,  expressly 
following  Webster,  defines  it  as  "actual  loss"  (la).  The 
word  "injury  "  is  often  used,  even  by  courts  and  law  writ- 
ers as  meaning  the  same  thing;  the  familiar  expression 
"personal  injury"  is  an  example.  But,  in  its  strict  legal 
signification,  injury  means  ' '  the  violation  of  a  right,  some- 
thing, in  other  words,  for  which  an  action  will  lie  on  be- 
half of  the  injured  person;  an  actionable  wrong"  (lb). 
A  has  an  empty  feed-lot.  B  walks  across  it  without  A's 
consent.  In  so  doing  B  commits  a  technical  trespass. 
A's  right  of  property  has  been  violated;  he  has  sustained 
a  legal  injury ;  but  all  men  would  agree  that  he  has  sus- 
tained no  actual  damage.  An  injury  does  frequently  re- 
sult in  damage,  and,  when  damage  results,  damages  may 
be  recovered  as  compensation;  but,  as  will  later  appear, 
damages  may  be  recovered  wherever  a  legal  injury  has 

(1)     Stallings  v.  Corbett,  2  Spears  (S.  C.)  613. 

(la)     Weeks  v.  Town  of  Shirley,  33  Me.  272. 

(lb)     Hitch  V.  Edgecombe  Co.  Com'rs,  132  N.  C.  573. 


110  DAMAGES 

occurred,  although  in  the  particular  case  no  damage  what- 
ever has  been  sustained.  In  the  case  put,  A's  right  of 
recovery  is  just  as  clear  as  it  would  have  been  had  B 
thrown  down  the  fence  enclosing  the  feed-lot;  the  only 
difference  would  be  in  the  amount  of  damages  recovered. 

§3.  Damnum  absque  injuria— "damage  without  in- 
jury." It  is  an  ancient  and  elementary  rule  of  the  com- 
mon law  that  for  damage  without  injury  no  action  for 
damages  may  be  maintained.  In  the  celebrated  case  of 
the  Gloucester  Grammar  School  (Ic),  decided  in  1410,  we 
find  an  early  illustration.  Plaintiffs  were  two  masters  of 
a  grammar  school  at  Gloucester  and  had  enjoyed  a  mo- 
nopoly of  the  business  of  teaching  the  children  of  the 
town.  Defendant  started  a  rival  school.  As  a  result  of 
his  competition,  the  masters  who  as  monopolists  had  re- 
ceived forty  pence  per  quarter  for  each  child  now  got 
but  twelve  pence.  The  plaintiffs  relied  upon  this  very 
substantial  damage  as  a  ground  of  action,  but  they  failed 
because  they  could  not  show  a  legal  injury.  Said  one  of 
the  judges :  ' '  There  may  be  damnum  absque  injuria.  As 
if  I  have  a  mill,  and  my  neighbor  builds  another  mill, 
whereby  the  profit  of  mine  is  diminished,  I  shall  have  no 
action  against  him ;  still  I  am  damaged. ' '  Damage  to  an- 
other's  person  inflicted  in  self-defense,  the  destruction  of 
property  to  prevent  the  spread  of  fire,  and  damage  result- 
ing from  inevitable  accident,  are  familiar  illustrations  of 
the  same  principle. 

§4.    Injuria  sine  damno— "injury  without  damage." 
Since  the  basic  idea  of  damages  is  compensation  for  a 


(Ic)     Anon.  Y.  B.  11  Henry  IV.  fol.  47  pi.  21. 


PEELIMINARY  111 

loss  or  damage  sustained,  it  is  natural  to  assume  that, 
unless  there  is  an  actual  loss  or  damage  sustained,  no 
damages  may  be  recovered.  And  this  has  sometimes  been 
laid  down  as  a  rule.  But  there  is  no  such  rule.  The  true 
doctrine  was  well  expressed  by  Judge  Story  in  a  dictum 
in  a  leading  case  (Id).  Plaintiff  and  defendant  each 
owned  mills  and  mill  privileges  upon  a  certain  river  dam. 
To  supply  water  for  one  of  its  mills,  defendant  diverted 
water  from  the  river  above  plaintiffs'  mills.  Plaintiff 
brought  a  bill  in  equity  to  restrain  this  diversion.  De- 
fendant contended  that  plaintiff  could  not  maintain  an 
action  at  law  without  proving  actual  damage,  and  that 
therefore  an  injunction  should  not  issue  in  the  absence 
of  such  proof.  While  denying  that  the  propriety  of  an 
injunction  depended  upon  plaintiff's  ability  to  maintain 
an  action  at  law,  the  learned  judge  took  the  ground  that 
an  action  at  law  might  be  maintained  upon  showing  that 
the  diversion  was  contrary  to  the  plaintiff's  right,  and 
without  showing  the  presence  of  actual  damage.  He  said : 
"I  can  very  well  understand  that  no  action  lies  in  a 
case  where  there  is  damnum  absque  injuria ;  that  is,  where 
there  is  damage  done  without  any  wrong  or  violation  of 
any  right  of  the  plaintiff.  But  I  am  not  able  to  understand 
how  it  can  correctly  be  said,  in  a  legal  sense,  that  an 
action  will  not  lie  even  in  case  of  a  wrong  or  violation 
of  a  right,  unless  it  is  followed  by  some  perceptible 
damage,  which  can  be  established  as  a  matter  of  fact ;  in 
other  words  that  injuria  sine  damno  is  not  actionable. 
.     .    .    On  the  contrary,  from  my  earliest  reading,  I  have 


(Id)     Webb  V,  Portland  Mfg.  Co.,  3  Sumn.  189. 


112  DAMAGES 

considered  it  laid  up  among  the  very  elements  of  the 
common  law  that  wherever  there  is  a  wrong  there  is  a 
remedy  to  redress  it;  and  that  every  injury  imports 
damage  in  the  nature  of  it ;  and,  if  no  other  damage  is 
established,  the  party  injured  is  entitled  to  a  verdict  for 
nominal  damages." 

§  5.  Damage  sometimes  an  essential  element  of  an  in- 
jury. We  have  seen  that  when  a  legal  injury  has  occurred 
the  presence  of  actual  damage  is  not  essential  to  the  re- 
covery of  damages.  In  such  a  case  the  extent  of  actual 
damage  is  important  only  as  a  basis  for  determining  the 
amount  of  damages  to  which  the  party  injured  is  en- 
titled as  a  fair  compensation.  But  this  assumes  the  ex- 
istence of  a  legal  injury.  In  some  cases  a  legal  injury 
is  complete  without  the  occurrence  of  actual  damage; 
thus  it  is  always  actionable  to  break  a  contract,  to  publish 
a  libel,  or  to  make  an  unauthorized  entry  upon  another's 
real  property,  although  no  damage  whatever  ensue.  In 
other  cases  the  law  does  not  protect  the  particular  right 
so  jealously,  or  condemn  the  particular  act  so  vigorously ; 
it  may  be  said  to  look  upon  the  doing  of  the  act  with  dis- 
favor and  to  stand  ready  to  treat  it  as  an  injury  the 
instant  it  causes  damage,  but,  unless  damage  appears,  no 
injury  is  made  out.  To  illustrate :  A  negligently  fires  a 
gun  in  the  direction  of  B;  B  escapes  unharmed;  he  can 
maintain  no  action  against  A ;  negligence  without  damage 
is  not  actionable;  but,  if  the  ball  had  inflicted  a  slight 
flesh-wound,  or  even  torn  his  coat,  his  right  to  maintain 
an  action  would  be  clear.  Again  M  makes  a  false  state- 
ment to  X  with  regard  to  an  existing  fact ;  he  knows  that 


PRELIMINARY  113 

his  statement  is  false  and  he  makes  it  with  the  intention 
of  inducing  X  to  act  upon  it ;  X  does  act  upon  it,  but  sus- 
tains no  perceptible  damage  in  so  doing;  notwithstand- 
ing the  deception  X  can  maintain  no  action ;  if,  however, 
X's  reliance  upon  M's  statement  causes  him  appreciable 
damage,  the  law  regards  him  as  having  sustained  an 
injury  and  allows  him  to  maintain  an  action  for  deceit. 
The  law  of  libel  and  slander  furnishes  us  with  another 
illustration  of  the  same  principle.  Libel  or  written  def- 
amation is  always  actionable  without  regard  to  damage; 
some  forms  of  slander  or  oral  defamation  are  actionable 
per  se ;  but,  in  the  ordinary  case,  it  is  necessary  to  show 
that  the  slanderous  words  spoken  have  resulted  in  a 
particular  kind  of  actual  damage— a  temporal  loss  must 
be  shown. 

§  6.  Place  of  damages  in  the  law.  Thus  it  appears  that 
wherever  a  legal  right  has  been  invaded  the  law  stands 
ready  to  vindicate  that  right  by  awarding  at  least  nominal 
damages  to  the  injured  party.  The  invasion  of  a  legal 
right  may  or  may  not  involve  the  infliction  of  actual 
damage.  The  question,  whether  a  right  has  been  invaded, 
and,  therefore,  whether  any  damages  whatever  may  be 
recovered,  is  strictly  speaking  no  part  of  the  law  of 
damages ;  it  obviously  belongs  to  the  law  of  rights.  As- 
suming that  a  right  has  been  violated,  and  that  some 
damages  are  therefore  recoverable  in  a  particular  case, 
we  go  to  the  law  of  damages  to  find  how  much  damages 
may  bo  recovered.  It  is  with  the  principles  determining 
the  measure  of  damages  that  we  are  concerned  in  this 
article. 


114  DAMAGES 

Section  2.  Kespective  Functions  of  Court  and  Jury  in 
Awarding  Damages. 

§  7.  Damages  estimated  by  jury  under  instructions  of 
court.  A  judgment  for  damages  is  necessarily  an  act  of 
the  court;  but  everybody  knows  that  the  amount  of 
damages  recovered  is  ordinarily  determined  by  a  jury, 
upon  whose  verdict  the  judgment  is  based.  It  is  also  a 
matter  of  common  knowledge  that  the  court  instructs  the 
jury  as  to  the  law  governing  the  assessment  of  damages 
in  the  particular  case.  The  question  naturally  arises: 
upon  what  principle  is  this  responsibility  divided?  The 
answer  is  simple.  The  function  of  the  court  is  to  decide 
questions  of  law;  the  function  of  the  jury  is  to  decide 
questions  of  fact.  Since  compensation  is  the  basis  of 
damages,  the  ultimate  question,  in  the  ordinary  case,  is, 
what  is  a  fair  compensation  to  the  plaintiff?  This  ob- 
viously involves  a  question  of  fact;  it  can  be  answered 
only  in  view  of  all  the  facts  and  circumstances  of  the  case. 
It  is  therefore  a  question  for  the  jury.  But,  in  consider- 
ing these  facts  and  circumstances,  the  jury  are  not  at 
liberty  to  follow  their  caprice,  nor  indeed  to  rely  wholly 
upon  their  own  sense  of  fairness ;  the  law  has  prescribed 
rules  for  their  guidance,  and  the  court,  as  the  mouthpiece 
of  the  law,  must  declare  these  rules  in  the  form  of  in- 
structions. 

§  8.  Extent  of  jury's  discretion.  At  this  point  a  fur- 
ther question  presents  itself.  How  far  does  the  court  go 
in  instructing  the  jury:  does  it  endeavor  to  formulate 
definite  tests,  which,  if  faithfully  followed,  must  lead  to 
the  same  conclusion,  by  whatsoever  jury  they  may  be  ap- 


PEELIMINARY  115 

plied ;  or  is  it  content  with  va^e,  general  rules,  leaving 
a  wide  margin  of  discretion  to  the  jury  which  must  apply 
them?  The  answer  is  that  the  amount  of  discretion  al- 
lowed the  jury  depends  upon  the  nature  of  the  injury  for 
which  damages  are  sought.  Formerly  there  was  little 
attempt  to  limit  the  discretion  of  the  jury,  but  nowadays 
the  tendency  is  to  control  that  discretion  as  far  as  prac- 
ticable. The  jury's  discretion  is  widest  in  those  cases 
in  which  exemplary  or  punitive,  as  distinguished  from 
compensatory,  damages  may  be  imposed;  it  extends  to 
determining  whether  they  shall  or  shall  not  be  assessed, 
and  to  fixing  the  amount,  which  may  be  as  great  as  the 
jury  deem  just,  subject  only  to  the  limitation  imposed  by 
what  is  reasonable.  In  assessing  compensatory  damages, 
different  considerations  prevail.  In  some  cases,  the 
damage  to  be  compensated  is  capable  of  precise  measure- 
ment ;  in  those  cases  the  jury  must  follow  precise  rules. 
If  A  owes  B  $100  and  fails  to  pay  when  it  is  due,  B's 
damage  is  obviously  capable  of  estimation  in  terms  of 
money,  and  there  is  no  reason  why  the  jury  should  have 
any  discretion  in  assessing  B's  damages.  If,  however, 
A's  default  consists  in  failing  to  perform  a  contract, 
whereby  he  has  agreed  to  work  for  B  a  definite  time,  it  is 
plain  that  the  jury  must  have  a  measure  of  discretion; 
men  will  differ  in  opinion  as  to  the  extent  of  B  's  damage, 
and  some  latitude  must  be  given  to  the  jury.  Now  sup- 
pose that  A's  wrong  consists  in  injuring  B's  reputation 
by  slander,  in  depriving  him  of  his  liberty  by  false  im- 
prisonment, or  in  inflicting  upon  him  a  serious  personal 
injury,  like  the  loss  of  an  arm  or  an  eye  or  the  derange- 


116  DAMAGES 

ment  of  his  nervous  system ;  how  shall  the  court  lay  down 
a  rule  for  estimating  the  damages?  Here  it  is  obvious 
that  the  only  practicable  rule  is  to  allow  the  jury  very 
great  freedom;  common  sense,  applied  to  the  circum- 
stances of  the  particular  case,  will  be  the  safest  guide. 
Thus  we  see  that  the  inherent  differences  in  the  various 
forms  of  injury  necessitate  a  corresponding  variation  in 
the  extent  of  control  exercised  by  the  court  over  the  jury 
in  various  cases.  In  no  case,  however,  may  the  jury  act 
arbitrarily.  Be  the  court's  instructions  vague  or  definite, 
it  is  the  jury's  duty  to  follow  them. 

§  9.  Excessive  damages.  That  a  verdict  for  damages 
in  an  amount  materially  in  excess  of  what  could  reason- 
ably be  assessed,  in  view  of  the  facts  and  the  law  ap- 
plicable thereto,  would  result  in  substantial  injustice,  if 
given  effect  by  the  judgment  of  the  court,  is  too  clear  for 
discussion.  In  such  a  case  the  court  will  either  set  the 
verdict  aside  or  remit  the  excess.  When  the  injury  is 
such  that  the  damages  can  be  estimated  by  pecuniary 
standards,  as  in  the  case  of  a  contract  to  pay  money  or 
to  deliver  goods  of  a  fixed  market  value,  the  court  has 
little  hesitation  in  interfering  with  the  verdict ;  but,  where 
the  jury  has  a  certain  amount  of  discretion,  the  court  has 
a  corresponding  amount  of  hesitation.  And  where  the 
jury's  discretion  is  widest  the  court's  hesitation  is 
greatest.  In  no  case,  where  the  jury  has  a  discretion,  will 
the  court  disturb  the  verdict  simply  because  the  judge 
would  have  awarded  a  lesser  sum  had  he  been  called  upon 
to  exercise  his  own  judgment  in  fixing  the  amount;  the 
verdict  must  stand,  unless  it  appears  to  him  that  the 


PRELIMINAKY  117 

jury's  discretion  has  been  abused.  In  a  leading  case  (le) 
in  which  defendant  sought  to  have  a  verdict  for  damages 
for  a  personal  injury  set  aside,  on  the  ground  that  the 
amount  was  excessive,  the  court  said:  ''In  all  cases 
where  there  is  no  rule  of  law  regulating  the  assessment 
of  damages,  and  the  amount  does  not  depend  on  computa- 
tion, the  judgment  of  the  jury  and  not  the  opinion  of  the 
court  is  to  govern,  unless  the  damages  are  so  excessive 
as  to  warrant  the  belief  that  the  jury  must  have  been 
influenced  by  partiality  or  prejudice,  or  have  been  misled 
by  some  mistaken  view  of  the  merits  of  the  case. ' '  Acting 
under  this  rule  courts  have  refused  to  interfere  with  ver- 
dicts for  such  amounts  as  $4,500  for  loss  of  an  arm  (2), 
$10,000  for  loss  of  a  foot  (3),  $9,000  for  total  loss  of 
vision  (4),  and  $30,000  for  total  disability  (5).  And  yet, 
where  the  court,  after  making  every  allowance  for  the 
discretion  of  the  jury,  is  convinced  that  the  damages 
assessed  are  manifestly  exorbitant,  it  will  not  hesitate  to 
set  the  verdict  aside,  or,  as  an  alternative  in  some  juris- 
dictions, to  reduce  the  damages  for  which  the  plaintiff 
may  take  judgment.  Thus,  where  a  jury  had  assessed 
damages  in  the  sum  of  $5,200  against  a  telegraph  com- 
pany for  publishing  a  libel,  but  it  appeared  that  the  sole 
publication  was  to  defendant's  own  agent,  the  court  set 
the  verdict  aside  as  "simply  farcical,"  and  to  be  ac- 
counted for  only  on  the  ground  that  it  was  the  result  of 

(le)     Worster  v.  Proprietors  of  Canal  Bridge,  16  Pick.  541. 

(2)  Mo.  Pac.  R.  Co.  v.  Tex.  Pac.  R.  Co.,  41  Fed.  316. 

(3)  Bowers  v.  U.  P.  R.  Co.,  4  Utah,  215. 

(4)  Stearns  v.  Reidy,  135  111.  119. 

(5)  Smith  V.  Whittier,  95  Cal.  279. 


118  DAMAGES 

passion  and  prejudice  (6).  On  the  same  principle  courts 
have  set  aside,  as  excessive,  verdicts  for  such  amounts 
as  $10,000  for  loss  of  an  arm  (7),  $25,000  for  loss  of  a 
leg  (8),  and  $37,500  for  total  loss  of  vision  (9).  Since 
the  problem  of  the  court  in  these  cases  is  to  determine 
just  when  to  draw  the  rein  upon  the  jury's  discretion,  we 
might  well  expect  and  do  actually  find  verdicts  upheld  by 
some  courts,  and  similar  verdicts  set  aside  by  others. 

§  10.  Inadequate  damages.  If  the  defendant  may  have 
the  verdict  set  aside  when  the  damages  assessed  are 
manifestly  excessive,  it  follows  that  the  plaintiff  should 
have  it  set  aside  when  they  are  manifestly  inadequate. 
That  such  is  the  law  is  well  settled.  So  long  as  there  is 
a  real  doubt  as  to  the  extent  of  the  damage  which  has 
been  caused  by  defendant's  breach  of  duty,  it  will  be 
difficult  for  the  court  to  say  that  the  damages  are  inade- 
quate. Thus,  where  plaintiff  brought  an  action  to  re- 
cover damages  for  a  personal  injury  caused  by  de- 
fendant's negligence,  but  there  was  conflicting  testimony 
as  to  the  extent  of  her  injuries,  and  some  evidence  that 
a  part  of  the  pain  and  disability  from  which  she  suffered 
was  attributable  to  previous  ill  health,  the  court  refused 
to  set  aside  as  inadequate  a  verdict  for  $167  (10).  But, 
where  there  is  no  question  arising  on  the  evidence  as  to 
the  extent  of  the  damage  caused  by  defendant,  and  the 
question  is  purely  one  of  compensation,  the  court  dis- 


(6)  Peterson  v.  W.  U.  Tel.  Co.,  65  Minn.  18. 

(7)  111.  Cent.  R.  Co.  v.  Welch,  52  111.  183. 

(8)  Tully  V.  Steamship  Co.,  10  N.  Y.  App.  Dlv.  463. 

(9)  Deep  Min.  Co.  v.  Fitzgerald,  21  Colo.  533. 

(10)  Robinson  v.  Towh  of  Waupaca,  77  Wis.  544. 


PRELIMINARY  119 

turbs  verdicts  for  inadequate  damages  on  the  same  prin- 
ciple that  it  interferes  when  the  damages  assessed  are 
excessive.  To  be  sure  courts  are  not  often  called  upon 
to  exercise  this  power,  for  juries  are  not  prone  to  under- 
estimate damages,  but  there  are  numerous  instances  of 
its  exercise.  Here,  as  in  the  case  of  excessive  damages, 
the  task  of  the  court  is  not  difficult  when  the  damage  ad- 
mits of  measurement  by  pecuniary  standards.  Thus,  a 
verdict  for  one-fourth  of  the  proved  value  of  horses  killed 
by  the  defendant's  negligence  is  obviously  inadequate 
and  is  set  aside  without  hesitation  (11).  But  the  courts 
are  exceedingly  slow  to  act  in  these  cases  where  the  jury 
have  a  large  discretion.  Thus,  it  is  said  that  the  amount 
must  be  placed  so  low  as  to  show  that  the  jury  have  acted 
from  ''passion  or  prejudice"  (12)  or  ''under  the  influence 
of  a  perverted  judgment"  (13).  But  that  they  do  act, 
even  in  this  class  of  cases,  is  clearly  shown  by  a  recent 
case  (14)  in  which  a  verdict  for  $100  for  serious  personal 
injuries  was  set  aside  by  the  trial  court  as  inadequate. 
In  upholding  the  action  of  the  lower  court  the  supreme 
court  said : 

' '  It  seems  to  have  been  thought  by  some  courts  that  the 
general  supervisory  power  over  verdicts,  where  the 
amount  is  not  capable  of  computation  and  rests  in  the 
sound  discretion  of  the  jury,  should  not  be  exercised  where 
the  verdict  is  for  too  small  an  amount.  No  such  limitation 
on  the  supervisory  power  of  the  trial  judge  has  been 


(11)  Smedley  v.  C.  &  N.  W.  Ry.  Co.,  45  111.  App.  426. 

(12)  Boggess  V.  Met.  St.  Ry.  Co..  ±18  Mo.  328. 

(13)  Robinson  v.  Town  of  Waupaca,  77  Wis.  544. 

(14)  Tathwell  v.  City  of  Cedar  Rapids,  122  Iowa,  50. 

Vol.  X— 1 0 


120  DAMAGES 

definitely  established,  and,  by  the  great  weight  of  au- 
thority, both  in  England  and  America,  the  power  to  set 
aside  the  verdict  when  manifestly  inconsistent  with  the 
evidence,  and  the  result  of  a  misconception  by  the  jury  of 
their  powers  and  duties,  is  as  fully  recognized  where  the 
verdict  is  inadequate  as  where  it  is  excessive ;  and  ample 
illustration  of  the  exercise  of  this  power  is  found  in 
actions  to  recover  damages  for  personal  injuries  or  injury 
to  the  reputation,  although  in  such  cases  the  amount  of 
damages  is  peculiarly  within  the  jury's  discretion." 


NON-COMPENSATORY  DAMAGES  121 


CHAPTER  II. 

NON-COMPENSATORY  DAMAGES. 

Section  1.  Nominal  Damages. 
§  11.  General  theory.  In  the  early  days  of  the  common 
law  damages  were  awarded  only  when  actual,  appreciable 
damage  had  been  inflicted ;  but  nowadays  a  plaintiff  may 
recover  a  trifling  sum,  e.  g.,  a  farthing,  a  sixpence,  or  a 
dollar,  whenever  his  legal  right  has  been  invaded.  The 
allowance  of  nominal  damages  results  from  a  sort  of  pro- 
cedural necessity.  It  is  often  important  that  rights  be 
adjudicated  and  established,  although  no  real  harm  or 
damage  may  have  resulted  from  their  violation.  Further- 
more, it  is  a  maxim  of  the  law  that  wherever  there  is  a 
right  there  is  a  remedy.  We  have  already  seen  that  the 
normal  remedy  afforded  by  a  court  of  law  is  a  judgment 
for  damages.  Hence,  if  the  plaintiff's  right  appears  to 
have  been  violated  without  the  infliction  of  measurable 
damage,  the  natural  remedy  and  the  simplest  method  of 
vindicating  the  right  is  to  award  a  judgment  for  nominal 
damages.  The  right  involved,  perhaps  a  title  to  real 
estate,  is  thereby  declared  and  finally  adjudicated,  with- 
out at  the  same  time  unjustly  burdening  the  defendant. 
But  the  notion  that  damage  is  the  basis  of  damages  is  so 
firmly  imbedded  in  the  law,  that  the  courts  have  resorted 
to  a  legal  fiction  and  are  wont  to  say  that  every  legal 


122  DAMAGES 

injury  ''imports"  damage.    An  extract  from  the  leading 
case  of  Ashby  v.  White   (1),  shows  the  theory  usually 
adopted  by  the  courts.    In  that  case,  a  qualified  voter  had 
been  prevented  by  an  officer  from  giving  his  vote  at  an 
election  for  a  member  of  parliament.    Said  Lord  Holt: 
* 'I  am  of  opinion  that  this  action  on  the  case  is  a  proper 
action.    My  brother  Powell,  indeed,  thinks  that  an  action 
on  the  case  is  not  maintainable,  because  there  is  no  hurt 
or  damage  to  the  plaintiff;  but  surely  every  injury  im- 
ports a  damage,  though  it  does  not  cost  the  party  one 
farthing,  and  it  is  impossible  to  prove  the  contrary;  for 
a  damage  is  not  merely  pecuniary,  but  an  injury  imports 
a  damage,  when  a  man  is  thereby  hindered  of  his  right." 
§  12.    Nominal  damages  recoverable  for  every  breach  of 
contract.     Whenever  a  man  breaks  a  contract,  he  violates 
the  legal  right  of  the  other  contracting  party,  and  there- 
fore lays  himself  liable  to  an  action  in  which  at  least 
nominal  damages  may  be  recovered.    Thus,  where  plain- 
tiff, in  an  action  for  wages  on  a  contract  for  services, 
showed  that  he  had  rendered  services,  but  failed  to  prove 
their  value,  the  court  held  that  he  was  entitled  to  recover 
nominal  damages   (2).     In  another  case   (3)   defendant 
complained  of  the  refusal  of  the  trial  court  to  instruct  the 
jii'ry  that  plaintiff  could  not  recover  in  an  action  for 
breach  of  contract,  without  showing  that  he  had  been 
damaged  by  defendant's  breach.     The  appellate  court 
held  that  the  refusal  was  entirely  proper  and  said:    *'In 
actions  for  breach  of  contract,  nominal  damages  are  pre- 

(1)  2  Ld.  Raym.  03^. 

(2)  Owen  v.  O'Reilly,  20  Mo.  (503. 

(3)  Browner  v.  Davis,  15  C:il.  0. 


NON-COMPENSATORY  DAMAGES  123 

sumed  to  follow  as  a  conclusion  of  law  from  proof  of  the 
breach. ' ' 

§  13.    Nominal  damages  recoverable  for  every  tort. 

The  right  violated  may  not  arise  out  of  contract  at  all; 
it  may  be  a  right  which  the  plaintiff  enjoys  as  a  member 
of  society,  and  quite  apart  from  any  contractual  relations 
between  him  and  the  defendant— in  other  words,  one  of 
the  so-called  ''tort  rights";  but,  from  what  has  been  said, 
it  is  plain  that  on  principle  nominal  damages  should  be 
allowed  for  the  infringement  of  such  a  right.  And  so  the 
cases  hold.  Defendant  commits  an  assault  and  battery 
upon  the  plaintiff;  in  so  doing  he  violates  the  plaintiff's 
right  of  personal  security.  For  the  vindication  of  this 
right  the  law  awards  nominal  damages,  although  no 
actual  damage  is  proved  (4).  On  the  same  principle,  the 
infringement  of  one 's  right  of  personal  liberty,  by  a  false 
arrest,  entitles  him  to  nominal  damages,  although  no 
damage  results  from  the  arrest  (5).  The  right  of  private 
property  is  often  thus  recognized.  It  is  held  that  the 
slightest  trespass  upon  real  property  gives  rise  to  an 
action  for  nominal  damages  (6).  And  the  wrongful  tak- 
ing of  plaintiff's  goods  entitles  him  to  nominal  damages, 
although  the  property  taken  has  been  returned  and  he 
has  sustained  no  appreciable  damage  (7).  A  leading  case 
is  Wood  V.  Waud  (8).  As  an  incident  to  his  right  of 
property  in  a  tract  of  land,  plaintiff  had  a  right  to  use 


(4) 

Lewis  V.  Hoover,  3  Blackf.  407. 

(5) 

Lewis  V.  Clegg,  120  N.  C.  292. 

(6) 

Dixon  V.  Clow,  24  Wend.  188. 

(7) 

Cernalian  v.  Clirisler,  107  Wis.  645. 

(8) 

3  Exch.  748. 

124  DAMAGES 

the  waters  of  a  natural  stream.  Defendant  and  others 
had  mills  on  the  stream  above  plaintiff's  land,  and  their 
milling  operations  fouled  the  waters  of  the  stream.  It 
was  held  that  plaintiff  might  recover  nominal  damages, 
although  the  other  mill-owners  had  so  fouled  the  stream 
above  defendant's  mill  that  the  additional  pollution  by 
the  defendant  caused  plaintiff  no  additional  damage. 

§  14.  Nominal  damages  recoverable  despite  actual  ben- 
efit from  the  legal  injury.  That  nominal  damages  are 
awarded,  not  as  compensation,  but  in  recognition  of  a 
legal  right,  is  forcibly  shown  by  those  cases  which  hold 
that  nominal  damages  may  be  recovered,  even  where  the 
violation  of  the  plaintiff's  right  has  resulted  in  an  actual 
benefit  to  him.  Such  a  case  is  Carver  v.  Taylor  (9). 
There  the  plaintiff  had  agreed  to  buy  of  the  defendant,  at 
a  stipulated  price,  certain  real  estate  which  the  defendant 
was  to  convey  at  an  agreed  time.  Defendant  failed  to 
perform  his  contract.  At  the  time  he  should  have  con- 
veyed the  land,  its  value  was  much  less  than  the  price 
the  plaintiff  had  agreed  to  pay.  Had  defendant  per- 
formed his  contract,  plaintiff  would  have  been  obliged 
to  pay  the  contract  price.  That  he  was  benefited  by  de- 
fendant's default  is  obvious;  but  the  court  held  that 
plaintiff  was  entitled  to  nominal  damages. 

§  15.  Nominal  damages  recovered  where  no  proof  of 
substantial  damage.  It  has  been  said  that  originally  no 
damages  could  be  recovered  unless  actual,  appreciable 
damage  was  proved.  The  modern  law  of  damages  is 
built  upon  the  basis  of  compensation  for  damage  sus- 


(9)     35  Neb.  429. 


NON-COMPENSATORY  DAMAGES  125 

tained.  It  is  still  true  that  substantial  damages  cannot  be 
recovered,  unless  substantial  damage  is  shown.  Injury 
without  damage  limits  the  plaintiff's  recovery  to  nominal 
damages,  at  the  same  time  that  it  makes  them  recoverable. 
Two  cases  will  illustrate  the  principle.  In  Merrill  v. 
Western  Union  Tel.  Go.  (10),  damages  were  sought  for 
the  inexcusable  non-delivery  of  a  telegram,  whereby  the 
plaintiff  was  prevented  from  performing  his  contract  to 
labor,  but,  as  it  appeared  that  the  contract  was  determin- 
able at  the  will  of  either  party,  the  plaintiff  failed  to  show 
substantial  damage.  The  court  said:  ''The  plaintiff 
must  prove  his  damages  before  they  can  be  assessed.  The 
case  fails  to  show  facts  that  warrant  greater  than  nominal 
damages."  In  Leeds  v.  Metropolitan  Gaslight  Co.  (11), 
plaintiff  sought  to  recover  for  loss  of  time  occasioned  by 
defendant's  negligence,  but  failed  to  give  any  evidence 
from  which  the  value  of  the  time  lost  could  be  inferred. 
The  court  held  that  he  could  not  recover  substantial 
damages  and  said:  ''The  rule  of  recovery  is  compensa- 
tion. When  a  loss  is  pecuniary,  and  is  present  and  actual 
and  can  be  measured,  but  no  evidence  is  given  showing 
its  extent,  or  from  which  it  can  be  inferred,  the  jury  can 
allow  nominal  damages  only." 

Section  2.     E'xemplaey  Damages. 

§  16.    In  general.    We  have  already  seen  that  nominal 

damages  constitute  an  exception  to  the  general  rule  that 

damages  are  awarded  as  compensation  for  actual  damage 

sustained.  Exemplary  damages  form  another  exception  to 


(10)  78  Me.  97. 

(11)  90  N.  Y.  26. 


126  DAMAGES 

that  rule.  Just  as  nominal  damages  are  awarded,  where 
there  is  no  actual  damage  to  compensate,  and  in  recog- 
nition of  a  right  that  has  been  infringed,  so  exemplary 
damages  are  awarded  in  certain  cases,  in  addition  to 
compensation,  as  a  punishment  to  the  defendant  and  an 
example  to  others.  In  the  words  of  an  eminent  writer: 
"Wherever  the  elements  of  fraud,  malice,  gross  negli- 
gence, or  oppression  mingle  in  the  controversy,  the  law, 
instead  of  adhering  to  the  system  or  even  the  language 
of  compensation,  adopts  a  wholly  different  rule.  It  per- 
mits the  jury  to  give  what  it  terms  'punitive,'  'vindictive,' 
or  'exemplary'  damages;  in  other  words,  blends  together 
the  interests  of  society  and  of  the  aggrieved  individual, 
and  gives  damages  not  only  to  recompense  the  sufferer, 
but  to  punish  the  offender"  (12).  The  theory  adopted 
by  the  courts  in  allowing  exemplary  damages  is  well 
brought  out  in  Sheik  v.  Hobson  (13).  A  statute  had  pro- 
vided that  all  causes  of  action  should  survive  the  death 
of  the  person  liable,  and  might  be  brought  against  his 
personal  representative.  Under  this  statute,  plaintiff, 
in  an  action  for  slander,  claimed  exemplary  damages  from 
the  administrator  of  the  deceased  wrong-doer.  This 
squarely  raised  the  question  as  to  whether  they  could 
be  recovered  as  a  right  incident  to  the  cause  of  action. 
Speaking  through  Eeed,  J.,  the  court  said: 

"It  cannot  be  said,  in  any  case— unless  the  right  is 
created  by  statute— that  the  person  who  suffers  from  the 
wrongful  or  malicious  acts  of  another,  has  the  right  to 


(12)     1  Sedgwick  on  Damages,  p.  38. 
a3)     64  Iowa,  14G. 


NOI^-COMPENSATORY  DAMAGES  127 

have  vindictive  damages  assessed  against  the  wrong-doer. 
Such  damages  are  awarded  as  a  punishment  of  the  man 
who  has  wickedly  or  wantonly  violated  the  rights  of  an- 
other, rather  than  for  the  compensation  of  one  who  suf- 
fers from  his  wrongful  act.  It  is  true,  they  are  awarded 
to  the  one  who  has  been  made  to  suffer,  but  not  as  a 
matter  of  right ;  for,  while  he  is  entitled,  under  the  law, 
to  such  a  sum  as  will  fully  compensate  him  for  the  injury 
sustained,  the  question  whether  punitory  damages  shall 
be  assessed  and  the  amount  of  the  assessment,  is  left  to 
the  discretion  of  the  jury.  Plaintiff  had  a  right  of  action, 
on  account  of  slanderous  words  spoken  by  Eush,  for  such 
sum  as  would  compensate  her  for  the  injury.  This  was 
her  cause  of  action,  and  this  is  what  was  preserved  to 
her  by  the  statute  at  his  death.  But  she  had  no  personal 
interest  in  the  question  of  his  punishment.  So  far  as  he 
was  concerned,  the  punitory  power  of  the  law  ceased  when 
he  died.  To  allow  exemplary  damages  now,  would  be  to 
punish  his  legal  and  personal  representatives  for  his 
wrongful  acts;  but  the  civil  law  never  inflicts  vicarious 
punishment. ' ' 

§  17.    Doctrine    of    exemplary    damages    criticised. 

Although  supported  by  the  great  weight  of  judicial  au- 
thority the  doctrine  has  met  with  strong  opposition.  It 
has  been  condemned  as  ''interjecting  into  a  purely  civil 
action  the  elements  of  a  criminal  trial,  intermingling  into 
a  sort  of  medley  or  legal  jumble  two  distinct  systems  of 
judicial  procedure. ' '  From  the  standpoint  of  legal  theory 
it  mjist  be  admitted  that  there  is  something  in  the  objec- 
tion.   If  it  be  denied  that  plaintiff  has  a  right  to  recover 


128  DAMAGES 

exemplary  damagos,  their  recovery  by  him  as  a  matter 
of  the  jury's  discretion  seems  anomalous.  If  it  be  affirmed 
that  they  are  assessed  as  a  punishment  of  the  defendant, 
it  seems  equally  anomalous  to  allow  the  penalty  to  be 
fixed  by  the  discretion  of  a  jury,  after  a  trial  in  which 
the  time-honored  rule  of  proof  in  criminal  cases,  beyond 
a  reasonable  doubt,  has  yielded  to  proof  by  preponder- 
ance of  testimony,  and  in  which  the  defendant  has  per- 
haps been  compelled  to  testify  against  himse'lf.  The 
practice  of  allowing  exemplary  damages  is  to  be  justified, 
if  at  all,  by  its  practical  results,  rather  than  by  its 
theoretical  blending  of  the  interests  of  society  and  of  the 
individual.  As  a  matter  of  fact,  it  is  probable  that  in  the 
long  run  substantially  the  same  results  are  reached  by 
juries  in  those  jurisdictions  which  repudiate  exemplary 
damages,  as  in  those  jurisdictions  which  uphold  them; 
for  all  of  them  give  the  jury  wide  discretion  in  assessing 
compensatory  damages  for  mental  suffering,  injured  feel- 
ings, insults,  indignities,  sense  of  shame,  and  humiliation 
endured,  and  it  is  obvious  that  such  consequences  would 
ordinarily  follow  from  the  very  class  of  wrongs  for  which 
exemplary  damages  are  elsewhere  allowed.  With  free 
rein  to  assess  damages  under  those  heads,  it  is  doubtful 
if  juries  often  give  smaller  verdicts  simply  because  they 
cannot  assess  exemplary  damages  as  such. 

§18.  Exemplary  damages  within  jury's  discretion.  As 
we  have  already  seen,  exemplary  damages  are  not  re- 
coverable as  a  matter  of  right,  and  their  allowance  rests 
within  the  discretion  of  the  jury.  It  is  error  for  the 
court  to  instruct  the  jury  that  it  must  or  even  ought  to 


NON-COMPENSATORY  DAMAGES  129 

assess  exemplary  damages  in  any  case.  Its  powers  are 
exhausted  in  passive  permission  or  actual  restraint.  It 
should  never  direct  the  jury  to  award  exemplary  damages, 
but  should  instruct  it  as  to  when  it  may  properly  do  so, 
and  as  to  when  its  discretionary  power  may  not  be  ex- 
ercised. Thus,  a  court  may  properly  instruct  a  jury  that 
''insult,  indignity,  oppression,  or  inhumanity"  will  be 
sufficient  to  authorize  a  finding  of  exemplary  damages, 
but  it  may  not  properly  instruct  the  jury  that  **  indecorous 
conduct"  will  warrant  such  a  verdict  (14).  And  here,  as 
in  other  cases  of  discretionary  damages,  the  court  may 
interfere  if  the  amount  allowed  is  unreasonably  excessive. 

§  19.  Exemplary  damages  practically  restricted  to  tort 
actions.  That  a  contract  may  be  broken  with  malicious 
motives,  and  under  circumstances  which  make  the  breach 
insulting  or  oppressive,  is  clear  to  everyone,  and,  if 
punitory  damages  were  applicable  to  actions  on  contract, 
it  is  probable  that  they  would  not  infrequently  be  assessed 
in  such  actions ;  but  their  allowance  has  been  restricted, 
as  a  general  rule,  to  tort  actions  of  a  quasi-criminal 
character.  To  this  rule  there  is  a  well-founded  excep- 
tion :  in  actions  for  breach  of  promise  of  marriage,  it  is 
held  that  vindictive  damages  may  be  assessed,  if  the  jury 
consider  defendant's  conduct  so  reprehensible  as  to  war- 
rant punishment  (15). 

§  20.  Against  whom  exemplary  dajnages  are  recover- 
able. If  exemplary  damages  are  really  punitory  in  char- 
acter, and  their  recovery  is  allowed  as  a  punishment  for 


(14)  Louisville  &  N.  R.  Co.  v.  Ballard,  85  Ky.  307. 

(15)  Southard  v.  Rexford,  6  Cowen,  254. 


130  DAMAGES 

malicious,  wanton,  or  reckless  conduct,  it  logically  follows 
that  they  should  be  allowed  only  where  the  defendant  has 
himself  been  guilty  of  such  misconduct,  either  directly 
or  indirectly.  If  he  has  committed  a  brutal  assault  and 
battery ;  if  he  has  deliberately  defrauded  the  plaintiff  of 
property ;  if  he  has  knowingly  and  maliciously  made  slan- 
derous or  libelous  statements  attacking  the  plaintiff's 
character;  if  he  has  by  wanton  or  reckless  misconduct, 
showing  utter  indifference  to  the  plaintiff's  safety,  in- 
flicted a  serious  personal  injury  upon  him;  in  these  and 
many  other  cases  which  might  be  put,  the  occasion  for 
exemplary  damages  is  manifest.  Or,  if  he  has  indirectly 
been  guilty  of  such  misconduct,  by  expressly  directing 
or  authorizing  an  agent  or  servant  to  engage  in  it,  the 
propriety  of  such  punishment  is  equally  manifest.  So, 
too,  where  his  agent  or  servant  has  been  guilty  of  suclj 
misconduct,  and  he  has  afterwards  adopted  and  ratifie(i 
it  as  his  own.  In  these  cases  his  moral  obliquity  is  a% 
clear  as  though  he  had  himself  been  an  active  wrong, 
doer,  and  he  is  therefore  held  liable  for  exemplary 
damages.  There  is  also  little  hesitation  in  visiting  this 
penalty  upon  the  defendant,  when  he  has  exercised  gross 
negligence  in  selecting  his  personal  representative,  or 
where  he  has  entrusted  his  business  wholly  to  an  agent 
without  supervision  or  control,  and  thereby  evinced  an 
intent  to  become  fully  responsible  for  his  acts. 

;  §  21.  Same:  Against  innocent  principal  for  acts  of 
agent.  But  a  serious  problem  arises  in  those  cases  in 
which  none  of  these  elements  is  present,  and  where  the 
sole  ground  of  liability  is  that  the  act  was  done  in  the 


NON-COMPENSATORY  DAMAGES  131 

scope  of  an  agent's  authority  or  within  the  course  of  a 
servant's  employment,  as  those  terms  are  defined  by  the 
law.  In  such  cases  the  liability  of  the  defendant  principal 
or  master  to  make  full  compensation  for  all  actual  damage 
is  unquestioned;  but  there  is  utterly  lacking  that  moral 
delinquency,  that  quasi-criminal  mind,  which  make  puni- 
tive damages  have  a  place  in  the  law;  and,  therefore, 
many  courts  hold  that  the  defendant's  liability  does 
not  extend  beyond  the  payment  of  compensatory 
damages  (16).  However,  many  courts  do  not  regard  this 
absence  of  personal  guilt  in  the  principal  or  master  as 
decisive.  They  hold  that  the  general  principle  of  re- 
sponsibility for  the  acts  of  an  agent  or  servant,  done  in 
the  course  of  employment,  applies  as  well  in  the  allowance 
of  exemplary  damages  as  in  the  assessment  of  compensa- 
tion (17).  Some  courts  have  shown  a  tendency  to  give 
great  weight  to  considerations  of  public  policy  in  apply- 
ing the  law  to  particular  classes  of  cases.  Thus,  it  has 
been  urged  that  private  corporations  ought  to  be  liable  in 
exemplary  damages  for  the  acts  of  their  employes,  on 
the  theory  that,  as  corporations  can  act  only  through 
agents  or  servants,  they  would  otherwise  be  practically 
immune  from  the  operation  of  the  law  so  far  as  exem- 
plary damages  are  concerned  (18).  There  is  a  distinct 
tendency  toward  greater  strictness  in  the  case  of  railway 
corporations,  on  the  ground  that  it  is  the  policy  of  the  law 
to  encourage  great  care  in  the  selection  of  railway  em- 

(10)     Lake  Shore  &  M.  S.  Ry.  v.  Prentice,  147  U.  S.  101. 

(17)  Rucker  v.  Smoke,  37  S.  C.  377. 

(18)  Goddard  v.  Grand  Trunk  Ry.  of  Canada,  57  Me.  202. 


132  DAMAGES 

ployes  (19).  On  the  other  hand,  municipal  corporations 
are,  for  reasons  of  policy,  generally  considered  as  pe- 
culiarly exempt  from  liability  for  exemplary  damages, 
although  they,  as  well  as  private  corporations,  must  neces- 
sarily act  through  agents  or  servants  (20). 


(19)  Lienkauf  v.  Morris,  66  Ala.  406, 

(20)  City  of  Chicago  v.  Langlass,  52  111.  256, 


COMPENSATORY  DAMAGES  133 


CHAPTER  III. 

COMPENSATORY     DAMAGES:      PRELIMINARY     CONSIDER- 
ATIONS. 

§  22.  In  general.  Were  the  remedial  powers  of  a  court 
of  law  restricted  to  the  awarding  of  nominal  damages 
in  technical  recognition  of  a  legal  right,  and  to  the  im- 
position of  exemplary  damages  in  punishment  of  a  quasi- 
criminal  tort,  its  inefficiency  as  an  instrument  of  justice 
would  be  apparent  at  a  glance.  When  a  plaintiff  goes 
into  a  court  of  law  with  a  prayer  for  damages,  he  or- 
dinarily seeks  neither  the  mere  recognition  of  a  right  nor 
the  punishment  of  the  defendant;  what  he  asks  is  sub- 
stantial damages  for  substantial  harm,  pecuniary  indem- 
nity for  actual  damage  caused  by  defendant's  breach  of 
duty.  If  the  damages  allowed  by  the  court  are  to  amount 
to  a  remedy  at  all,  it  is  evident  that  they  must  have  a 
relation  to  this  damage  and  indeed  be  commensurate  with 
it.  And  such  indemnity  the  law  stands  ready  to  grant. 
The  basic  idea  of  the  law  of  Damages  is  compensation. 
Its  great  purpose  is  fully  to  compensate  the  plaintiff  by 
damages  that  shall  at  the  same  time  be  just  to  the  de- 
fendant. It  is  therefore  with  the  principles  and  rules 
governing  the  assessment  of  compensatory  damages  that 
the  law  of  Damages  is  mainly  concerned.  This  branch  of 
the  law  starts  with  the  assumption  that  a  breach  of  duty 


134  DAMAGES 

by  the  defendant,  constituting  a  violation  of  plaintiff's 
legal  right,  has  already  occurred.  It  may  have  occurred 
as  a  tort  or  as  a  breach  of  contract.  In  either  case  our 
problem  is:  how  shall  the  plaintiff  be  fully  and  fairly 
compensated  1 

Section  1.    Liquidated  Damages. 

§  23.  Liquidated  damages  defined.  Ordinarily  the 
question  as  to  what  constitutes  proper  compensation  is 
answered  by  the  jury,  under  the  instructions  of  the  court ; 
but  in  some  cases  the  court  holds  that  this  question  has 
been  answered  by  an  agreement  of  the  parties  themselves, 
in  anticipation  of  a  possible  breach  of  duty  by  one  of 
them.  For  reasons  not  here  necessary  to  state,  these 
cases  are  confined  to  actions  on  contract.  Frequently  a 
contract  contains  a  provision  that,  in  the  event  of  its 
breach,  a  certain  sum  shall  be  paid  as  damages.  Some- 
times such  a  provision  has  the  effect  of  conclusively  fix- 
ing the  compensation  to  be  paid  by  the  defaulting  party 
in  case  of  a  breach.  When  it  has  such  an  affect,  the  dam- 
ages are  said  to  be  liquidated.  When  the  damages  are 
liquidated,  no  question  of  compensation  is  left  for  the 
jury;  assuming  a  breach  of  the  contract,  the  plaintiff's 
recovery  of  liquidated  damages  follows  as  a  conclusion 
of  law. 

§  24.  Distinguished  from  a  penalty.  But  not  all  such 
provisions  have  this  effect.  Frequently  the  court  holds 
that  such  a  provision  is  in  the  nature  of  a  penalty.  The 
word  "penalty,"  as  used  in  this  connection,  has  a  special 
meaning  very  different  from  its  ordinary  import.  This 
meaning  will  appear  from  a  brief  account  of  the  instru- 


COMPENSATORY  DAMAGES  135 

ment  known  as  the  penal  bond.  Formerly  interest  was 
not  recoverable  upon  money  due.  If  the  debtor  had  use 
for  his  money,  he  would  naturally  be  tempted  to  postpone 
the  payment  of  his  debt.  For  the  protection  of  the  credi- 
tor, it  is  supposed  (1),  an  instrument  was  devised  by 
which  a  party  bound  himself  to  pay  a  sum  of  money  or  do 
a  certain  act  by  a  certain  day,  or  in  default  thereof  to  pay 
a  certain  sum  of  money  by  way  of  penalty.  The  original 
idea  was  to  penalize  the  non-performance  of  an  obliga- 
tion. This  was  accomplished  by  making  the  amount  of 
the  penalty  excessive,  when  viewed  from  the  standpoint 
of  compensation.  Thus  a  debt  for  £50  would  be  secured 
by  a  penalty  of  £100.  As  the  law  courts  rigidly  enforced 
these  penalties,  great  hardship  was  frequently  occa- 
sioned. In  consequence,  equity  began  to  relieve  obligors 
from  the  burden  of  such  penalties.  After  a  time,  the  law 
courts  found  a  way  to  follow  the  lead  of  the  equity  courts 
in  this  practice.  As  a  result,  the  penalty  of  the  penal 
bond  became  a  penalty  in  name  only,  serving  in  reality  to 
mark  the  limit  of  the  plaintiff's  recovery;  within  this 
limit  damages  were  allowed  to  the  extent  of  adequate  com- 
pensation only.  In  modern  penal  bonds  and  in  statutory 
undertakings,  such  as  attachment,  injunction,  and  official 
bonds,  the  penalty  marks  the  limit  beyond  which  the  li- 
ability of  the  bondsman  for  compensatory  damages  will 
in  no  case  extend.  In  the  case  of  an  ordinary  contract, 
the  fixing  of  a  penalty  for  its  breach  apparently  has  no 
effect  at  all,  so  far  as  the  substantial  rights  of  the  parties 
are  concerned;  when  a  breach  occurs  compensation  may 


(1)     See  Sedgwick's  Elements  of  Damages  (1st  ed.),  P-  216. 

Vol.  X— 1 1 


136  DAMAGES 

be  had  upon  the  principles  usually  applicable  in  assessing 
damages  for  breach  of  contract,  be  the  amount  thus  re- 
coverable greater  or  less  than  the  penal  sum  named  in 
the  contract  broken. 

The  practical  importance  of  the  distinction  between  a 
penalty  and  liquidated  damages  now  appears.  The  for- 
mer has  no  effect  in  determining  the  amount  recoverable 
in  an  action  on  an  ordinary  contract ;  the  latter  fixes  that 
amount  absolutely.  In  a  particular  case,  it  may  turn  out 
that  a  sum  named  by  the  parties  as  damages  in  case  of  a 
breach  is  considerably  in  excess  of  what  a  jury  would 
probably  assess,  if  the  matter  were  submitted  to  them. 
In  such  a  case  the  defendant's  interest  would  obviously 
be  furthered  by  holding  the  sum  named  to  be  a  penalty 
only,  thereby  leaving  the  question  of  compensation  to  be 
settled  by  the  jury.  Conversely,  the  plaintiff's  interest 
would  be  furthered  by  holding  the  sum  named  to  be  liqui- 
dated damages,  thereby  taking  the  question  from  the  jury 
and  allowing  the  full  sum  as  the  plaintiff's  legal  right. 
The  conflict  of  opposing  interests  at  this  point  has  been 
a  fruitful  source  of  litigation.  The  law  of  liquidated  dam- 
ages consists  chiefly  of  the  principles  and  rules  which 
guide  the  courts  in  deciding  whether  a  particular  sum 
named  by  the  parties  as  damages  shall  be  treated  as 
liquidated  damages  or  as  a  penalty  only. 

§  25.  Principal  considerations  in  determining  whether 
damages  are  liquidated:  Stipulation  penal.  It  is  often  said 
that  in  determining  whether  a  sum,  which  contracting 
parties  have  declared  payable  in  the  event  of  a  breach, 
is  to  be  deemed  a  penalty  or  liquidated  damages,  the  gen- 


COMPENSATOEY  DAMAGES  137 

eral  rule  is  that  the  intention  of  the  parties  governs.  In- 
deed cases  are  usually  decided  upon  the  basis  of  what 
the  intention  of  the  parties  must  be  ''presumed"  to  have 
been.  In  arriving  at  this  presumed  intention,  however,  a 
court  will  not  hestitate  to  override  the  actual  intention  as 
expressed  by  the  parties  themselves,  whenever  an  adher- 
ence to  the  expressed  intention  would  clearly  work  injus- 
tice. Thus  in  Kemble  v.  Farren  (2),  a  leading  case,  the 
court  held  a  particular  sum  to  be  a  penalty  although  the 
contract  expressly  declared  this  sum  to  be  ''liquidated 
and  ascertained  damages,  and  not  a  penalty  or  penal  sum 
or  in  the  nature  thereof."  In  another  leading  case  (3), 
which  professes  to  follow  the  general  rule,  it  is  said : 

"The  agreement  will,  however,  be  ascertained  by  con- 
sidering, not  only  particular  words  in  their  contract,  but 
the  whole  scope  of  their  bargain,  including  the  subject  to 
which  it  relates.  If  on  such  consideration,  it  appears  that 
they  have  provided  for  larger  damages  than  the  law  per- 
mits, e.  g.  more  than  the  legal  rate  for  the  payment  of 
money,  or  that  they  have  provided  for  the  same  damages 
on  the  breach  of  any  one  of  several  stipulations,  when  the 
loss  resulting  from  such  stipulations  clearly  must  differ 
in  amount,  or  that  they  have  named  an  excessive  sum  in  a 
case  where  the  real  damages  are  certain,  or  readily  re- 
ducible to  certainty  by  proof  before  a  jury,  or  a  sum 
which  it  would  be  unconscionable  to  award— under  any 
of  these  conditions  the  sum  designated  is  deemed  a  pen- 
alty.   And,  if  it  be  doubtful,  on  the  whole  agreement, 


(2)  6  Bing.  141. 

(3)  Monmouth  Park  Ass'n  v.  Wallis  Iron  Works,  55  N.  J.  L.  132. 


138  DAMAGES 

whether  the  sum  is  intended  as  a  penalty  or  as  liquidated 
damages,  it  will  be  construed  as  a  penalty,  because  the 
law  favors  indemnity." 

From  this  enumeration  of  the  conditions  under  which 
a  sum  named  as  damages  will  be  held  to  constitute  a  pen- 
alty, regardless  of  the  language  of  the  parties,  it  is  evi- 
dent that  the  intention  of  the  parties  will  be  practically 
disregarded  in  those  cases  where,  to  carry  it  out,  would 
be  to  contravene  the  principle  of  compensation. 

§  26.  Same:  Stipulation  valid.  In  a  case  where  the 
parties  have  simply  tried  to  substitute  their  own  judg- 
ment for  that  of  the  jury  upon  the  question  of  compen- 
sation, and  their  agreement  is  reasonably  consistent  with 
the  principles  of  indemnity,  there  is  an  obvious  advantage 
in  carrying  out  their  expressed  intention;  for  such  a 
course  will  save  time  and  expense  and  avoid  the  uncer- 
tainty of  a  verdict.  In  Jaquith  v.  Hudson  (4),  a  leading 
American  case,  the  parties  had  been  partners  in  a  mer- 
cantile establishment.  In  the  contract  of  dissolution,  one 
of  them  agreed  not  to  engage  in  the  mercantile  business 
in  the  village  in  which  the  partnership  business  had  been 
carried  on,  for  a  period  of  three  years,  "upon  the  for- 
feiture of  the  sum  of  $1,000"  to  be  paid  "as  damages." 
The  court  held  that  this  stipulation  amounted  to  liqui- 
dated damages.  Said  Christiancy,  J.,  in  giving  the  rea- 
sons for  the  decision : 

"But,  secondly,  there  are  great  numbers  of  cases, 
where,  from  the  nature  of  the  contract  and  the  subject- 
matter  of  the  stipulation,  for  the  breach  of  which  the  sum 


(4)     5  Mich.  123. 


COMPENSATORY  DAMAGES  139 

is  provided,  it  is  apparent  to  the  court  that  the  actual 
damages  for  a  breach  are  uncertain  in  their  nature,  diffi- 
cult to  be  ascertained,  or  impossible  to  be  estimated  with 
certainty,  by  reference  to  any  pecuniary  standard,  and 
where  the  parties  themselves  are  more  intimately  ac- 
quainted with  all  the  peculiar  circumstances,  and  there- 
fore able  to  compute  the  actual  or  probable  damages,  than 
courts  or  juries,  from  any  evidence  which  can  be  brought 
before  them.  In  all  such  cases,  the  law  permits  the  par- 
ties to  ascertain  for  themselves,  and  to  provide  in  the 
contract  itself,  the  amount  of  the  damages  which  shall  be 
paid  for  the  breach.  In  permitting  this,  the  law  does  not 
lose  sight  of  the  principle  of  compensation,  which  is  the 
law  of  the  contract,  but  merely  adopts  the  computation  or 
estimate  of  the  damages  made  by  the  parties,  as  being  the 
best  and  most  certain  mode  of  ascertaining  the  actual 
damage  or  what  sum  will  amount  to  a  just  compensation." 

Section  2.  Certainty  in  Peoving  Damage. 
§  27.  In  general.  Even  though  the  damages  have  not 
been  liquidated  by  the  parties,  the  case  will  occasionally 
be  so  clear  under  the  law  as  to  warrant  the  court  in  tak- 
ing the  question  of  compensation  from  the  jury,  as  for 
instance,  in  an  action  upon  a  promissory  note ;  but,  as  a 
general  rule,  that  question  is  for  the  jury  to  answer,  after 
considering  the  evidence  under  the  instructions  of  the 
court.  The  plaintiff  is  entitled  to  full  indemnity  for  all 
the  damage  to  which  defendant's  responsibility  extends; 
but,  in  order  to  obtain  compensation  for  any  item  of  dam- 
age, he  must  prove  to  the  jury  that  he  has  sustained  that 
damage.    This  of  course  he  does  by  submitting  evidence. 


140  DAMAGES 

But  in  the  submission  of  evidence  he  is  controlled  by  the 
court,  and  the  court  must  see  that  the  rules  of  evidence 
are  followed.  These  rules  exclude  merely  speculative  or 
hypothetical  matters  from  the  consideration  of  the  jury, 
and  require  that  the  evidence  presented  shall  be  reason- 
ably certain  in  its  nature.  Accordingly,  only  those  items 
of  damage  which  are  susceptible  of  certainty  in  proof 
may  be  compensated  by  damages.  As  the  rule  is  loosely 
put,  ** damages  must  be  certain." 

§  28.  No  damages  allowed  for  loss  of  profits  incapable 
of  proof.  The  rule  of  certainty  is  most  frequently  invoked 
when  the  question  is  as  to  the  recovery  of  prospective 
profits.  As  we  shall  see,  there  is  no  general  rule  that  the 
loss  of  anticipated  profits  will  not  be  considered  in  com- 
puting damages,  for  such  profits  are  sometimes  capable 
of  tolerably  certain  proof;  but  there  is  a  rule  that  there 
can  be  no  recovery  for  profits  that  are  merely  hypotheti- 
cal or  speculative  in  character,  and  are  therefore  wholly 
incapable  of  proof.  A  few  cases  will  illustrate  its 
application.  In  Greene  v.  Goddard  (5),  plaintiffs,  com- 
mission merchants  in  China,  drew  bills  upon  defendant's 
account  with  a  London  firm,  defendant  agreeing  that  they 
should  be  paid  at  maturity.  They  were  not  paid  until 
some  time  after  maturity.  For  the  loss  of  the  use  of 
money  during  the  period  of  delay  plaintiffs  seek  damages, 
claiming  an  allowance  for  the  loss  of  profits  which  might 
have  arisen  from  the  use  of  the  money  but  for  defendant 's 
default.  In  holding  such  profits  to  be  incapable  of  proof 
the  court  said:  "In  the  use  of  money,  instead  of  realizing 


(5)     9  Met.  212. 


COMPENSATORY  DAMAGES  141 

great  profits,  they  might  have  encountered  difficulties  and 
sustained  injuries  unforeseen  at  the  time,  and  have  suf- 
fered like  thousands  of  others.  Theirs  is  not  a  loss,  in 
the  just  sense  of  the  term,  but  the  deprivation  of  an  op- 
portunity for  making  money,  which  might  have  proved 
beneficial  or  might  have  proved  ruinous ;  and  it  is  of  that 
uncertain  character  which  is  not  to  be  weighed  in  the  bal- 
ances of  the  law,  nor  to  be  ascertained  by  well  established 
rules  of  computation  among  merchants." 

§  29.  Same:  Further  illustrations.  In  Wright  v.  Mul- 
vaney  (6),  plaintiffs  were  fishermen.  Defendant  negli- 
gently ran  into  and  injured  their  net  with  his  steam-tug. 
On  the  trial  it  appeared  that  the  net  could  have  been  re- 
paired in  ten  days.  Evidence  was  given  as  to  plaintiffs' 
profits  prior  to  the  injury  of  the  net,  but  no  testimony  was 
offered  as  to  the  conditions  of  successful  fishing  or  the 
price  of  fish  after  the  accident.  Upon  the  basis  of  pre- 
vious profits  the  jury  assessed  $200  damages  for  loss  of 
profits  during  the  ten  days.  Held,  the  allowance  of  this 
item  was  improper.  After  remarking  upon  the  pro- 
verbial uncertainty  of  fishing,  the  court  said:  '* Without 
any  testimony  concerning  these  essential  conditions,  the 
jury  must  have  made  their  assessment  of  damages  to 
plaintiffs'  business  largely  upon  conjecture."  In  Bern- 
stein V.  Meech  (7),  defendant  agreed  to  pro\dde  an  opera- 
house  for  the  use  of  plaintiff's  theatrical  company,  the 
gross  receipts  to  be  equally  divided  between  plaintiff  and 
defendant.     Owing  to  defendant's  breach  of  contract, 


(6)  78  Wis.  89. 

(7)  130  N.  Y.  354. 


142  DAMAGES 

the  performances  did  not  take  place.  With  respect  to  the 
measure  of  damages  in  an  action  for  this  breach  the  court 
said  in  part:  **The  vahie  of  the  contract  to  the  plaintiff 
was  in  the  profits,  and  in  the  amount  of  them  which  may- 
have  been  realized  over  his  expenses  attending  the  per- 
formance. These  profits,  not  being  susceptible  of  proof, 
were  not  the  subject  of  recovery. ' ' 

§30.  Profits  fairly  susceptible  of  proof  may  be  re- 
covered. The  right  to  recover  damages  for  profits  lost 
does  not  wholly  depend  upon  the  rule  of  certainty,  as  will 
later  appear ;  but,  in  so  far  as  this  rule  furnishes  an  ob- 
stacle to  the  recovery  of  prospective  profits,  that  obstacle 
is  removed  when  the  loss  of  profits  may  be  proved  with 
a  reasonable  degree  of  certainty.  This  will  clearly  ap- 
pear from  a  few  illustrative  cases.  In  Aetna  Life  Ins. 
Co.  V.  Nexsen  (8),  plaintiff,  an  agent  of  defendant  com- 
pany, was  discharged  without  cause  before  the  expira- 
tion of  the  contract  of  agency.  At  the  time  of  his  dis- 
missal he  had  secured  policies  upon  which  the  annual  pre- 
miums amounted  to  $8,000.  By  the  terms  of  his  contract 
a  part  of  his  compensation  for  policies  secured  was  to  be 
5%  of  the  annual  renewal  premiums  thereon.  Defendant 
contended  that  no  allowance  should  be  made  for  plain- 
tiff's loss  of  anticipated  income  from  probable  renewals, 
on  the  ground  of  uncertainty.  The  court  said:  "It  is  also 
true  that  merely  speculative  or  conjectural  damages  can 
not  be  recovered,  but  appellee's  damages  are  not  merely 
speculative.  He  had  secured  policies  upon  which  there  is 
a  very  strong  probability  that  renewal  premiums  will  be 


(8)     84  Ind.  347. 


COMPENSATORY  DAMAGES  143 

paid.  The  act  which  secured  the  policies  has  been  per- 
formed, and  the  policies  are  in  existence.  The  basis  of 
the  right  to  damages  exists;  it  is  not  to  be  built  in  the 
future.  The  only  question  for  the  future  to  solve  is,  how 
many  policy-holders  will  renew  and  pay  premiums!  or 
how  many  policies  will  lapse?  This  probability,  like  all 
others  of  an  analogous  character,  is  to  be  determined 
upon  evidence.  Certainty  is  not  attainable,  but  this  may 
be  said  of  all  kindred  questions.  Because  absolute  cer- 
tainty is  not  attainable  is  no  reason  for  rejecting  all 
claims  to  recovery." 

§  31.  Same:  Further  illustration.  In  White  v.  Miller 
(9),  plaintiffs  were  gardeners.  Defendants  were  seeds- 
men. The  former  bought  of  the  latter  a  quantity  of  seeds 
which  defendants  warranted  to  be  Bristol  cabbage  seed. 
From  this  seed  105,000  plants  were  grown  and  set  out,  of 
which  100,000  lived.  Of  those  which  lived,  only  200  pro- 
duced Bristol  cabbages ;  all  the  rest  were  of  an  inferior 
variety  of  no  use  except  as  food  for  cattle.  Held,  plain- 
tiffs were  entitled  to  recover  the  difference  in  value  be- 
tween the  crop  grown  and  that  which  would  probably  have 
been  grown  had  the  seed  been  as  warranted.  While  de- 
claring that  the  jury  should  not  be  allowed  to  consider 
''mere  contingent  or  speculative  gains  or  losses,  with  re- 
spect to  which  no  means  of  ascertaining  with  any  cer- 
tainty whether  they  would  have  resulted  or  not,"  the 
court  said  in  support  of  its  position  that  plaintiffs'  loss 
could  in  this  case  be  established  with  sufficient  certainty : 
''The  character  of  the  season,  whether  favorable  or  un- 


(9)     71  N.  Y.  118. 


144  DAMAGES 

favorable  for  production ;  the  manner  in  wiiich  the  plants 
set  were  cultivated ;  the  condition  of  the  ground ;  the  re- 
sults observed  in  the  same  vicinity  where  cabbages  were 
planted,  under  similar  circumstances;  the  market  value 
of  Bristol  cabbages  when  the  crop  matured ;  the  value  of 
the  crop  raised  from  the  defective  seed ;  these  and  other 
circumstances  may  be  shown  to  aid  the  jury,  and  from 
which  they  can  ascertain  approximately  the  extent  of  the 
damages  resulting  from  the  loss  of  a  crop  of  a  particular 
kind." 

§  32.  Recovery  of  prospective  damages  depends  upon 
certainty  of  proof.  In  the  case  from  which  we  have  just 
quoted,  the  damage  had  all  been  sustained  at  the  time  the 
action  was  brought;  the  jury  could  take  a  retrospective 
view  and  assess  the  damages  accordingly.  But  in  the  pre- 
ceding case,  Insurance  Co.  v.  Nexsen,  the  damages  could 
not  be  assessed  without  a  look  into  the  future.  The  plain- 
tiff had  lost  his  commissions  upon  probable  renewals. 
These  renewals  would  occur  from  time  to  time  after  the 
trial.  It  was  a  question  of  probability  to  be  settled  in  the 
light  of  expert  testimony.  The  recoveiy  depended  upon 
the  possibility  of  establishing  this  probability  with  rea- 
sonable certainty.  A  sufficiently  probable  loss  complies 
with  the  rule  of  certainty,  as  well  as  one  which  can  be 
proved  with  reasonable  certainty  to  have  already  oc- 
curred; in  either  case  the  plaintiff  has  been  damaged. 
The  principle  is  further  illustrated  by  that  numerous 
class  of  cases  in  which  damages  are  allowed  for  probable 
future  suffering.   Thus  in  a  New  York  case  (10)  it  was 


(10)     Filer  v.  N.  Y.  Cent.  R.  Co.,  49  N.  Y.  42. 


COMPENSATOEY  DAMAGES  145 

held  proper  for  the  jury  to  consider  a  physician's  testi- 
mony as  to  the  probability  of  the  return  of  a  muscular  in- 
flammation consequent  upon  plaintiff's  injury  by  the  de- 
fendant. The  court  said,  in  part : ' '  The  limit  in  respect  to 
future  damages  is  that  they  must  be  such  as  it  is  reason- 
ably certain  will  inevitably  and  necessarily  result  from 
the  injury." 

§33.    Difficulty   of  measuring  damage  by  monetary 
standards.     To  recover  for  any  damage  sustained,  the 
actual  occurrence  of  such  damage  must  be  proved  with 
reasonable  certainty.   When  the  damage  is  of  such  a  char- 
acter that  it  may  be  measured  by  pecuniary  standards, 
the  plaintiff  must  present  evidence  upon  which  to  base 
such   measurement.     Accordingly   a   plaintiff   was   re- 
stricted to  nominal  damages  for  the  loss  of  his  time  when 
he  failed  to  give  any  evidence  as  to  the  value  of  his  time 
(11).    But  where  the  damage  is  incapable  of  such  meas- 
urement, recovery  will  not  therefore  be  denied.    This  is 
well  shown  by  those  cases  in  which  the  damages  are  said 
to  rest  within  the  discretion  of  the  jury.    The  difficulty  of 
measuring  physical  pain  and  mental  suffering  in  terms 
of  money  does  not  exclude  them  from  consideration  in  es- 
timating damages.    These  cases  generally  arise  in  tort; 
but  the  principle  extends  to  contract.    In  a  New  York 
case  (12)  plaintiffs  sued  for  breach  of  a  contract  in  which 
defendants  had  agreed  that  plaintiffs  should  have  the  ex- 
clusive agency  for  the  sale  of  a  sewing-machine  within 
certain  territory.    The  lower  court  excluded  evidence  of 


(11)  Leeds  v.  Metrop.  Gas  L.  Co.,  90  N.  Y.  26. 

(12)  Wakeman  v.  Wheeler  &  W.  Mfg.  Co..  101  N.  Y.  205. 


146  DAMAGES 

the  value  and  profits  of  similar  agencies  in  similar  locali- 
ties, offered  for  the  purpose  of  showing  the  value  of 
plaintiff's  contract,  on  the  ground  that  the  profits  lost  by 
the  breach  of  such  a  contract  were  necessarily  speculative 
and  imaginary.  Tliis  the  court  of  appeals  held  to  be  an 
error.    Said  Earl,  J.,  in  part: 

* '  The  damages  must  not  be  merely  speculative,  possi- 
ble and  imaginary,  but  they  must  be  reasonably  certain, 
and  such  only  as  actually  follow  or  may  follow  from  the 
breach  of  the  contract.  .  .  .  They  are  nearly  always 
involved  in  some  uncertainty  and  contingency;  usually 
they  are  to  be  worked  out  in  the  future,  and  they  can  be 
determined  only  approximately  upon  reasonable  con- 
jectures and  probable  estimates.  They  may  be  so  uncer- 
tain, contigent,  and  imaginary  as  to  be  incapable  of  ade- 
quate proof,  and  then  they  cannot  be  recovered  because 
they  cannot  be  proved.  But  when  it  is  certain  that  dam- 
ages have  been  caused  by  a  breach  of  contract,  and  the 
only  uncertainty  is  as  to  their  amount,  there  can  rarely 
be  good  reason  for  refusing,  on  account  of  uncertainty, 
any  damages  whatever  for  the  breach.  A  person  violat- 
ing his  contract  should  not  be  permitted  entirely  to  escape 
liability,  because  the  amount  of  the  damages  which  he  has 
caused  is  uncertain." 

§34.  Meaning  of  rule  that  law  adopts  most  certain 
method  of  measuring  damages.  It  is  often  said  that  where 
an  injury  has  occurred  and  several  modes  of  estimating 
the  damages  present  themselves,  the  law  will  adopt  that 
mode  which  is  most  certain  in  character  (13).    This  state- 


(13)     See  Griffin  v.  Colver,  16  N.  Y.  489,  495. 


COMPENSATOKY  DAMAGES  147 

ment  is  apt  to  be  misleading.  We  have  already  seen  that 
full  compensation  means  compensation  for  every  item 
of  damage,  which  can  be  proved  with  reasonable  cer- 
tainty to  have  been  suffered.  It  matters  not  how  many 
items  there  are ;  the  law  does  not  pick  out  those  that  are 
most  certain  and  reject  the  others ;  it  recognizes  all  that 
are  sufficiently  certain ;  compensation  may  be  had  for  all 
that  may  be  proved  with  reasonable  certainty.  On  the 
other  hand  the  rule  clearly  does  not  refer  to  the  evidence 
by  which  the  monetary  equivalent  of  a  proved  damage  is 
to  be  estimated.  What  then  does  it  mean?  It  means  sim- 
ply this :  in  many  cases  different  items  of  damage  present 
themselves  as  possible  bases  of  recovery;  the  law  rejects 
those  items  that  are  uncertain  and  recognizes  those  that 
are  certain.  Thus,  in  Greene  v.  Goddard  (§28,  above) 
the  court  would  not  allow  damages  for  the  profits  which 
might  have  been  made  out  of  the  use  of  money,  since  they 
were  merely  conjectural;  but  it  did  allow  compensation 
for  the  loss  which  was  proved.  By  the  non-payment  of 
the  bills  plaintiffs  lost  the  use  of  money.  The  use  of 
money  has  a  market  value  which  is  represented  by  the 
current  rate  of  interest.  This  measure  of  damages  was 
adopted  by  the  court.  In  Wright  v.  Mulvaney  ( §  29, 
above)  the  court  denied  compensation  for  profits  lost  by 
the  interruption  of  plaintiffs'  fishing— no  evidence  being 
offered  to  prove  such  loss— but  it  did  allow  compensation 
for  all  the  loss  which  was  proved,  viz.,  the  cost  of  repair- 
ing the  net,  the  services  required  in  resetting  it,  and  the 
actual  rental  value  of  the  net  for  the  ten  days  required 
for  restoration.    In  Bernstein  v.  Meech  (§29)  the  plain- 


148  DAMAGES 

tiff's  loss  was  not  confined  to  the  profits  which  he  might 
have  derived  from  the  performances  of  his  theatrical 
company;  his  loss  in  part  consisted  of  the  expenses  in- 
curred in  preparing  and  providing  for  the  engagement. 
These  expenses  could  be  proved  with  certainty  and  for 
this  loss  compensation  was  allowed.  Said  the  court: 
''While  the  plaintiff  was  unable  to  prove  the  value  in 
profits  of  his  contract,  he  was  properly  permitted  to  re- 
cover the  amount  of  such  loss  as  it  appeared  he  had  suf- 
fered by  the  defendants'  breach." 

Section  3.  Singleness  of  Recovery. 
§  35.  In  general.  It  sometimes  happens  that  the  dam- 
age for  which  a  party  is  entitled  to  compensation  has 
been  inflicted  and  suffered  once  for  all ;  again,  it  may  have 
been  cumulative  in  character,  resulting  from  a  series  of 
acts,  or  following  one  act  in  a  series  of  consequences ;  still 
again,  the  damage  may  be  in  part  a  matter  of  anticipation, 
capable  of  proof  with  sufficient  certainty,  but  not  yet  act- 
ually experienced.  In  such  cases  the  question  arises: 
when  may  the  damages  be  assessed ;  must  all  be  settled  in 
one  suit,  or  may  actions  be  brought  as  the  damage  is  suf- 
fered? From  the  standpoint  of  the  law  of  Damages,  the 
answer  is  simple.  For  a  single  cause  of  action  all  dam- 
ages must  be  assessed  in  a  single  suit.  The  law  will  not 
permit  an  action  to  be  split.  But  it  is  often  a  nice  prob- 
lem in  the  law  of  tort  or  contract  to  tell  whether  there  is 
one  action  or  more  than  one.  That  question  settled,  the 
rule  of  damages  is  that  for  each  distinct  cause  of  action 
all  the  damages  incident  thereto,  whether  for  damage 
already  suffered  or  sufficiently  proved  as  a  probable  con- 


COMPENSATORY  DAMAGES  149 

sequence,  must  be  recovered  in  one  action  if  at  all.    Con- 
trasted cases  in  tort  and  contract  will  illustrate  this. 

§  36.  Application  in  tort:  Trespass.  The  operation  of 
the  rule  in  a  personal  injury  case  is  simple.  Thus,  in  a 
leading  case  (14),  it  appeared  that  plaintiff  had  sued  de- 
fendant for  an  assault  and  battery  and  recovered  dam- 
ages therefor.  Afterwards,  as  a  result  of  the  same  bat- 
tery, a  piece  of  his  skull  came  out.  To  recover  for  this 
damage  he  brought  another  action.  The  former  recovery 
was  successfully  pleaded  in  bar.  There  was  only  one 
legal  injury,  one  cause  of  action,  the  assault  and  battery. 
As  to  the  injury  to  the  skull  the  court  said  that  must  be 
deemed  to  have  been  taken  into  consideration  as  a  prob- 
ability, when  the  damages  were  assessed  in  the  former 
action.  The  operation  of  the  rule  is  equally  simple  when 
the  question  is  as  to  recovery  for  damage  resulting  from 
a  trespass  upon  realty.  Thus,  defendant  wrongfully 
enters  upon  plaintiff's  land  and  digs  a  ditch  there. 
Against  this  trespass  the  statute  of  limitations  runs.  After 
the  running  of  the  statute  plaintiff's  land  is  flooded.  It 
is  conceded  that  defendant's  act  in  digging  the  ditch 
caused  the  overflow.  Plaintiff  now  sues,  seeking  dam- 
ages for  the  flooding  of  his  land.  Eecovery  is  denied. 
For  defendant's  trespass,  plaintiff  was  entitled  to  one 
action  only;  in  it  he  could  have  recovered  for  all  prospec- 
tive damages ;  the  time  for  bringing  that  action  has  gone 
by;  the  recent  flood  was  no  new  cause  of  action— it  was 
simply  damage  resulting  from  the  original  trespass  (15). 


(14)  Fetter  v.  Beal,  1  Ld.  Raym.  339,  692. 

(15)  Kansas  Pac.  Ry.  v.  Mihlman,  17  Kan.  224. 


150  DAMAGES 

§37.    Same:  Nuisance.    When,  however,  the  action  is 
for  a  nuisance,  we  are  confronted  with  a  different  situa- 
tion.   A  nuisance  ordinarily  results  from  acts  done  on 
defendant's  own  land;  it  becomes  a  wrong  to  plaintiff 
only  when  he  sustains  damage  therefrom.    Now  since  the 
damage  to  plaintiff  results  from  the  doing  of  acts,  or  the 
maintenance  of  a  condition,  upon  defendant's  own  land, 
the  defendant  always  has  it  within  his  legal  right  to  cease 
doing  the  acts,  or  alter  the  condition  of  his  premises  so  as 
to  prevent  further  damage  to  plaintiff.    Therefore,  it  is 
held  by  most  courts  that  in  such  a  case  prospective  dam- 
ages should  never  be  allowed.  They  contrast  it  with  the 
case  of  trespass,  where  the  defendant  has  no  right  to  re- 
enter the  plaintiff's  land  and  undo  his  wrong  and  cannot 
therefore  be  supposed  to  intend  to  do  so.    Thus,  where 
defendant  erected  a  building  upon  its  own  land  with  the 
roof  sloping  towards  plaintiff's  property  and  did  not 
place  proper  troughs  under  the  eaves,  in  consequence  of 
which  plaintiff's  cellar  was  flooded,  it  was  held  that  plaint- 
iff could  recover  such  damages  only  as  accrued  up  to  the 
bringing  of  the  suit.    Said  the  court:    ''There  is  a  legal 
obligation  to  remove  a  nuisance,  and  the  law  will  not  pre- 
sume the  continuance  of  a  wrong"  (16).    In  that  case  the 
nuisance  was  in  no  sense  permanent ;  it  was  a  simple  mat- 
ter to  place  adequate  eave-troughs  on  defendant's  build- 
ing.   Where,  however,  the  source  of  the  damage  is  per- 
manent in  character,  like  a  railway  embankment  for  in- 
stance, some  courts  presume  a  continuance  of  the  damage 
and  allow  damages  accordingly  (17). 


(16)  Joseph  Schlitz  Brewing  Co.  v.  Compton.  142  111.  511. 

(17)  Stodghill  V.  C.  B.  &  Q.  R.  R.,  53  Iowa,  341. 


COMPENSATOEY  DAMAGES  151 

§  38.  Application  in  contract.  Damages  for  future  loss 
in  actions  on  contract  are  known  as  entire  damages,  the 
term  prospective  damages  being  more  especially  applied 
in  actions  of  tort.  They  may  be  recovered  whenever  the 
breach  is  such  as  to  warrant  the  plaintiff  in  treating  the 
contract  as  at  an  end.  Thus,  where  defendant  had,  in  con- 
sideration of  the  conveyance  of  certain  property,  agreed 
to  support  the  plaintiff  during  his  life,  but  without  excuse 
neglected  and  refused  to  provide  support  during  a  period 
of  two  years,  it  was  held  that  the  plaintiff  was  justified  in 
treating  the  contract  as  at  an  end,  and  might  therefore  re- 
cover damages  for  the  loss  of  future  support  (18).  But, 
where  the  contract  cannot  be  treated  as  finally  broken, 
entire  damages  cannot  be  recovered.  Thus,  where  de- 
fendant agreed  not  to  set  up  the  business  of  a  grocer 
within  certain  limits  in  the  city  of  Boston,  the  plaintiff, 
upon  proving  a  breach  of  this  contract,  was  denied  recov- 
ery for  future  loss.  The  contract  could  not  be  treated  as 
broken  once  for  all ;  the  defendant  might  stop  carrying  on 
his  business  at  any  time,  when  plaintiff's  damage  would 
necessarily  cease  (19). 


(18)  Parker  v.  Russell,  133  Mass.  74. 

(19)  Powers  v.  Ware,  4  Pick,  206. 


152  DAMAGES 


CHAPTER  IV. 
LIABILITY  FOR  CONSEQUENCES  OF  BREACH  OF  DUTY. 

Section  1.    In  General.. 

§39.  Defendant  must  be  responsible  for  damage 
claimed.  In  discussing  the  subject  of  certainty  in  proving 
damage  we  have  assumed,  first,  that  the  defendant  has 
been  guilty  of  a  hreach  of  duty  toward  the  plaintiff ;  and, 
secondly  that  this  breach  of  duty  would  make  the  defend- 
ant liable  for  the  particular  damage  for  which  the  plaint- 
iff claims  compensation,  provided  only  that  he  can  prove 
that  he  has  suffered  such  damage.  But  it  does  not  follow 
that,  because  the  defendant  has  violated  the  plaintiff's 
right  and  the  plaintiff  has  sustained  a  particular  damage, 
the  defendant  is  therefore  liable  for  that  damage.  Per- 
haps the  damage  was  inflicted  by  some  third  person  for 
whose  conduct  the  defendant  is  not  responsible ;  perhaps 
it  is  attributable  to  some  external  force  for  whose  opera- 
tion nobody  is  responsible.  Obviously  the  damage  must 
be  brought  home  to  the  defendant  if  he  is  to  be  compelled 
to  pay  for  it. 

§  40.  Defendant's  breach  of  duty  must  be  cause  of 
plaintiff's  damage.  Clearly  plaintiff's  damage  must  be  a 
consequence  of  defendant's  wrongful  act  or  omission, 
whether  the  wrong  consist  of  a  tort  or  a  breach  of  con- 
tract.   How  else  could  we  hold  the  defendant  responsible? 


COMPENSATORY  DAMAGES  153 

This  does  not  mean  that  his  breach  of  duty  must  be  the 
sole  cause  of  plaintiff's  damage;  but  we  may  regard  it  as 
axiomatic  that,  somewhere  in  the  chain  of  causation  that 
ended  in  plaintiff's  damage,  must  appear  as  a  link  the  de- 
fendant's breach  of  duty. 

§  41.  Damage  must  be  legally  a  proximate  consequence 
of  defendant's  breach  of  duty.  The  general  rule  is  that 
defendant  is  liable  for  proximate,  but  not  for  remote  con- 
sequences ;  but  this  rule,  unexplained,  is  misleading,  and, 
understood,  is  of  no  assistance.  Its  natural  import  is  that 
nearness  of  the  consequence  in  point  of  time  or  sequence 
of  events  is  the  test,  but  actual  proximity  is  seldom  a  con- 
clusive factor.  Whatever  at  one  time  may  have  been  its 
meaning,  the  term  proximate  consequence  is  nowadays 
ordinarily  used  to  designate  a  consequence  to  which  de- 
fendant's responsibility  extends,  whether  the  action  be  in 
tort  or  contract.  Conversely,  the  corresponding  term 
''remote  consequence"  means  simply  a  consequence  to 
which  his  liability  does  not  extend.  To  state  the  general 
rule,  then,  is  merely  to  restate  the  problem.  The  ques- 
tion, thus  restated,  becomes :  what  consequences  are  prox- 
imate? "We  discard  this  rule  as  useless.  In  attempting  to 
answer  the  question,  tort  and  contract  will  be  separately 
considered. 

Section  2.  In  Tort. 
§  42.  In  general.  The  formulation  of  one  general  rule, 
that  will  serve  as  a  test  for  determining  what  conse- 
quences of  a  tort  are,  in  a  legal  sense,  proximate,  will  not 
here  be  attempted ;  but  a  few  statements  and  illustrative 
cases  may  serve  to  indicate  to  some  degree  the  limits  of 


154  DAMAGES 

responsibility  for  a  tortious  act.    See  also  the  article  on 
Torts,  §§  168-190,  in  Volume  II  of  this  work. 

§  43.  Liability  extends  to  aU  intended  consequences. 
No  difficulty  ever  arises  in  establishing  defendant's  liabil- 
ity for  a  consequence  which  he  actually  intended  to  cause. 
Let  his  tort  appear  as  a  link  in  the  chain  of  causation  that 
produced  a  consequence  which  he  intended;  his  liability 
for  that  consequence  is  a  legal  conclusion  (1). 

§  44.  Liability  further  extends  to  all  foreseeable  conse- 
quences. If  the  defendant  actually  foresees  that  a  particu- 
lar damage  will  probably  befall  the  plaintiff,  as  a  result 
of  a  contemplated  tort  against  the  plaintiif,  and  then  com- 
mits the  tort,  it  is  plain  that  for  all  practical  purposes  he 
must  have  intended  that  consequence.  If  he  did  not  fore- 
see it  we  cannot  charge  him  with  an  intention  to  produce 
it ;  and  yet,  if  we  can  fairly  say  that,  as  an  average  man, 
he  ought  to  have  foreseen  it,  we  may  justly  blame  him 
for  the  consequence.  In  the  realm  of  torts  it  is  the  fail- 
ure to  guard  against  the  foreseeable  consequences  of  the 
defendant's  act  that  makes  him  guilty  of  negligence.  In 
the  realm  of  Damages,  so  far  as  it  appertains  to  torts,  we 
start  with  the  assumption  that  a  tort  has  already  been 
committed,  and  our  problem  is  simply  to  ascertain  the 
damages ;  but  here  the  foreseeable  character  of  an  actual 
consequence  of  an  established  tort  will,  as  a  rule,  fix  de- 
fendant's liability  for  that  consequence,  regardless  of 
the  nature  of  the  tort.  By  one  process  of  reasoning  or 
another  that  conclusion  will  usually  be  reached.  A  single 
case  will  illustrate  the  rule. 


(1)     See  Webb's  Pollock  on  Torts,  p.  33. 


COMPENSATORY  DAMAGES  155 

§45.  Same:  Illustration.  In  Guille  v.  Swan  (2), 
Guille  went  up  in  a  balloon  which  descended  in  Swan*3 
garden.  It  dragged  over  growing  vegetables,  damaging 
them  to  the  extent  of  $15.  A  crowd  of  over  two  hundred 
persons,  attracted  by  the  balloon,  rushed  through  the 
fences  and  upon  the  garden,  damaging  vegetables  and 
flowers  to  the  extent  of  $75.  In  an  action  of  trespass,  de- 
fendant contended  that  he  was  not  liable  for  the  damage 
done  by  the  crowd;  but  the  court  held  that  he  was.  We 
quote  from  the  opinion  of  Spencer,  C.  J. :  "I  will  not 
say  that  ascending  in  a  balloon  is  an  unlawful  act,  for 
it  is  not  so ;  but  it  is  certain  that  an  aeronaut  has  no  con- 
trol over  its  motion  horizontally ;  he  is  at  the  sport  of  the 
winds,  and  is  to  descend  when  and  how  he  can ;  his  reach- 
ing the  earth  is  a  matter  of  hazard.  He  did  descend 
on  the  premises  of  the  plaintiff  below,  at  a  short  distance 
from  the  place  where  he  ascended.  Now,  if  his  descent, 
under  such  circumstances,  would,  ordinarily  and  natu- 
rally, draw  a  crowd  of  people  about  him,  either  from 
curiosity  or  for  the  purpose  of  rescuing  him  from  a 
perilous  situation— all  this  he  ought  to  have  foreseen, 
and  must  be  responsible  for.  Whether  the  crowd  heard 
him  call  for  help,  or  not,  is  immaterial ;  he  had  put  himself 
in  a  situation  to  invite  help,  and  they  rushed  forward, 
impelled,  perhaps,  by  the  double  motive  of  rendering  aid, 
and  gratifying  a  curiosity  which  he  had  excited." 

§  46.  Liability  not  restricted  to  foreseeable  conse- 
quences. The  statement  that  defendant  is  liable  for  all 
intended  consequences  does  not  involve  the  assertion  that 


(2)     19  Johns.  381. 


156  DAMAGES 

he  is  not  liable  for  any  consequence  that  is  not  intended. 
So  the  statement  that  he  is  liable  for  all  foreseeable  con- 
sequences does  not  involve  the  assertion  that  he  is  not  li- 
able for  any  consequence  that  is  not  foreseeable.  As  a 
matter  of  fact  he  is  often  held  liable  for  consequences  that 
nobody  could  possibly  have  foreseen.  This  is  illustrated 
by  a  Minnesota  case.  In  Vosburg  v.  Putney  (3),  defend- 
ant, aged  eleven,  and  plaintiff,  aged  fourteen,  sat  opposite 
each  other  at  school.  Defendant  reached  across  the  aisle 
and  struck  with  his  toe  the  right  leg  of  plaintiff.  The 
touch  was  light.  "Within  a  few  minutes  plaintiff  began  to 
feel  pain.  Later  a  bone  disease  developed  and  plaintiff 
lost  the  use  of  the  limb.  A  previous  injury  received  while 
coasting  had  rendered  his  leg  easily  susceptible  to  serious 
injury,  but  this  fact  was  unknown  to  the  defendant. 
Medical  testimony  agreed  that  defendant's  touch  or  kick 
was  the  exciting  cause  of  plaintiff's  disability.  Held,  the 
trial  court  properly  refused  to  restrict  the  damages  to 
such  consequences  "as  the  defendant  might  reasonably  be 
supposed  to  have  contemplated  as  likely  to  result  from 
kicking  the  plaintiff." 

§  47.  Final  limits  of  responsibility  for  tort.  Granted 
that  defendant  is  liable  for  all  intended  and  foreseeable 
consequences  of  his  tort,  and  that  his  responsibility  ex- 
tends beyond  these  limits,  where  does  it  stop?  The  an- 
swer to  this  question  is  one  of  the  most  difficult  problems 
in  the  whole  field  of  the  law.  The  courts  are  in  hopeless 
disagreement.    The  limits  of  this  article  forbid  a  detailed 


(3)     80  wis.  523. 


COMPEXSATORY  DAMAGES  157 

treatment,  but  it  is  believed  that  the  following  delimita- 
tion is  in  accord  with  the  prevailing  views. 

(a)  If  the  consequence  follows  the  defendant's  tor- 
tious act  in  ordinary  unbroken  sequence,  without  the  in- 
tervention of  another  agency  or  force,  it  will  usually  be 
considered  to  be  within  the  scope  of  defendant 's  liability. 
In  Bishop  v.  St.  Paul  City  Ry.  Co.  (4),  defendant  negli- 
gently upset  a  cable-car  upon  which  plaintiff  was  a  pas- 
senger. Plaintiff  was  thrown  down  and  rendered  uncon- 
scious. He  soon  regained  consciousness ;  did  not  appear 
much  hurt  at  first ;  went  about  his  business  the  same  day 
and  for  a  considerable  time  afterward ;  later  became  ner- 
vous and  suffered  from  headache;  seven  months  later, 
''without  other  apparent  cause"  he  suffered  a  stroke  of 
paralysis,  which  involved  his  whole  left  side.  Held,  the 
trial  court  properly  permitted  the  jur>^  to  assess  damages 
for  the  paralytic  stroke.  Said  the  court:  ''The  injury 
received  at  the  time  of  the  accident  was  the  proximate 
cause  of  the  paralysis,  if  it  caused  the  disease  in  the 
course  of  which  and  as  a  result  of  which  the  paralysis 
followed. ' ' 

§48.  Same  (continued),  (b)  Even  though  an  inter- 
vening agency  or  force  contribute  an  essential  element 
to  the  production  of  the  consequence  in  question,  defend- 
ant will,  nevertheless,  be  liable,  if  we  may  fairly  hold  him 
responsible  for  such  intervention.  In  Schumaker  v.  St. 
Paul  &  D.  R.  Co.  (5),  plaintiff,  a  car-repairer  in  defend- 
ant's employ,  was  sent  to  a  point  on  the  line  of  its  road 


(4)  48  Minn.  26. 

(5)  46  Minn.  39. 


158  DAMAGES 

to  repair  a  wrecked  caboose.  Defendant  failed  to  per- 
form its  duty  of  providing  bira  return  transportation. 
As  a  result  he  was  compelled  to  walk  at  night,  in  ex- 
tremely cold  weather,  to  a  village  nine  miles  distant.  In 
consequence  he  became  sick,  contracted  rheumatism,  and 
had  his  health  permanently  impaired.  For  these  conse- 
quences defendant  was  held  liable.  We  quote  a  part  of 
the  opinion;  ''There  was  no  intervening  independent 
cause  of  the  injury,  for  all  the  acts  done  by  the  plaintiff, 
his  effort  to  seek  protection  from  the  inclement  and  dan- 
gerous weather,  were  legitimate  and  compelled  by  defend- 
ant's failure  to  reconvey  him  to  the  city.  Had  he  re- 
mained at  the  caboose,  and  lost  his  hands  or  his  feet,  or 
perhaps  his  life,  by  freezing,  no  doubt  would  exist  of 
defendant's  liability.  It  must  not  be  permitted  to  escape 
the  consequences  of  its  wrong,  because  the  injuries  were 
received  in  an  effort  to  avoid  the  threatened  danger,  or 
because  they  differ  in  form  and  seriousness  from  those 
which  might  have  resulted  had  the  plaintiff  made  no  such 
effort.  An  efficient,  adequate  cause  being  found  for  the 
injuries  received  by  plaintiff,  it  must  be  considered  the 
true  cause,  unless  another,  not  incident  to  it,  but  inde- 
pendent of  it,  is  shown  to  have  intervened  between  it  and 
the  result." 

§  49.  Same  (continued) .  (c)  If  an  intervening  agency 
or  force,  for  which  defendant  cannot  fairly  be  deemed 
responsible,  contributes  an  element  necessary  to  the 
production  of  the  consequence  in  question,  defendant 
will  not  be  held  liable  for  that  consequence.    In  Hoey  v. 


COMPENSATOEY  DAMAGES  159 

Felton  (6),  in  an  action  for  false  imprisonment,  plaintiff 
offered  evidence  tending  to  prove  that,  in  consequence 
of  his  detention  by  the  defendant,  he  was  unable  to  secure 
a  position  which  he  would  otherwise  have  obtained.  The 
trial  court  excluded  the  evidence  on  the  ground  that  such 
a  consequence  was  too  remote.  Held,  the  exclusion  of 
this  evidence  was  proper.  ' '  The  wrong  would  not  have 
been  followed  by  the  damage,  if  some  facts  had  not  in- 
tervened for  which  the  defendant  was  not  responsible." 

Section  3.  In  Contkact. 
§  50.  In  general.  In  contract,  as  well  as  in  tort,  the 
general  rule  is  that  defendant  is  liable  for  the  proximate, 
but  not  for  the  remote  consequences  of  his  breach  of 
duty ;  but  in  contract,  as  well  as  in  tort,  the  general  rule 
is  misleading  and  useless.  Here,  as  there,  the  problem  is 
to  determine  what  consequences  are  proximate.  In  solv- 
ing the  problem  for  contract,  we  meet  with  new  consid- 
erations arising  from  the  fact  that  contractual  duties,  un- 
like duties  violated  by  tort,  are  created  by  agreement. 
We  saw  that  a  man  is  often  liable  for  consequences  of 
his  tort,  which  he  could  not  have  foreseen ;  but  in  contract, 
at  least  in  legal  contemplation,  he  is  liable  for  foreseeable 
consequences  only.  The  idea  is  that  his  whole  duty  is 
created  and  limited  by  agreement,  and  therefore  his  re- 
sponsibility is  restricted  to  such  consequences  as  may 
fairly  be  deemed  to  have  been  present  to  his  mind  as  a 
subject  of  agreement.  Only  those  consequences  of  a 
breach  may  justly  be  considered  as  having  been  within  his 


(6)     11  C.  B.  [N.  S.]  142. 


160  DAMAGES 

contemplation  that  might,  under  the  circiunstances,  have 
been  anticipated  by  him  as  being  reasonably  likely  to 
occur.  It  is  this  principle  that  is  the  foundation  of  Had- 
ley  V.  Baxendale,  from  which  is  derived  the  accepted  rule 
of  liability  for  the  consequences  of  a  breach  of  contract. 
§  51.  Rule  in  Hadley  v.  Baxendale  (7) .  Plaintiffs  were 
owners  of  a  gristmill.  This  mill  was  stopped  by  the 
breaking  of  a  shaft.  They  sent  the  pieces  of  the  shaft 
to  defendant,  a  carrier,  with  instructions  to  forward 
them  immediately  to  the  consignee.  As  the  court  viewed 
the  facts,  defendant  was  given  no  notice  of  the  necessity 
of  promptness  in  forwarding.  There  was,  however,  ur- 
gent necessity ;  for  plaintiffs  were  forwarding  the  broken 
shaft  to  be  used  as  a  model  in  the  making  of  a  new  one, 
and  the  mill  could  not  start  until  the  receipt  of  a  new 
shaft.  Defendants  did  not  forward  the  pieces  immedi- 
ately, but  delayed  delivery  several  days.  As  a  result, 
plaintiffs  did  not  receive  the  new  shaft  as  they  expected 
and  the  mill  was  kept  idle.  In  an  action  for  breach  of  the 
contract  for  prompt  carriage,  plaintiffs  claimed  damages 
for  the  loss  of  profits  resulting  from  the  idleness  of  the 
mill.  For  this  loss  the  court  denied  a  recovery,  laying 
down  the  following  rule :  ''Where  two  parties  have  made  a 
contract  which  one  of  them  has  broken,  the  damages  which 
the  other  party  ought  to  receive,  in  respect  of  such  breach 
of  contract,  should  be  such  as  may  fairly  and  reasonably 
be  considered  either  arising  naturally,  i.  e.,  according 
to  the  usual  course  of  things,  from  such  breach  of  con- 
tract itself;  or,  such  as  may  reasonably  be  supposed  to 

(7)     9  Ex.  341. 


COMPENSATORY  DAMAGES  161 

have  been  in  the  contemplation  of  both  parties,  at  the 
time  they  made  the  contract,  as  the  probable  result  of  the 
breach  of  it."  The  court  went  on  to  say  in  effect  that, 
when  notice  was  given  of  special  circumstances  which 
would  naturally  cause  consequences  out  of  the  ordinary 
to  flow  from  a  breach,  such  consequences  should  be  deemed 
to  have  been  in  the  contemplation  of  the  parties,  but,  in 
the  absence  of  such  notice,  they  could  not  be  supposed  to 
have  contemplated  consequences  other  than  such  as  would 
naturally  follow  the  breach  of  a  contract  of  that  char- 
acter, in  the  absence  of  such  special  circumstances.  Ap- 
plying this  doctrine  the  court  said : ' '  But  it  is  obvious  that, 
in  the  great  multitude  of  cases  of  millers  sending  broken 
shafts  to  third  persons  by  a  carrier  under  ordinary  cir- 
cumstances, such  consequences  would  not,  in  all  probabil- 
ity, have  occurred ;  and  these  special  circumstances  were 
here  never  communicated  by  the  plaintiffs  to  the  de- 
fendants." 

§  52.  What  constitutes  notice  of  special  circumstances. 
An  unsettled  question  is  that  of  the  sufficiency  of  notice 
of  special  circumstances.  The  notice  must  at  least 
amount  to  a  reasonable  warning  of  probable  consequences 
in  case  of  a  breach,  but  it  is  difficult  to  formulate  a  more 
specific  rule.  Two  leading  cases,  falling  on  opposite  sides 
of  the  line,  will  illustrate  the  problem. 

In  Home  v.  Midland  Ry.  (8),  plaintiffs  were  under  a 
contract  to  supply  a  large  quantity  of  military  shoes  to  a 
London  firm  for  the  use  of  the  French  army.  At  the  time 
the  contract  was  made  the  French  were  at  war,  the  de- 


cs)    li.  R.  7  C.  p.  588. 


162  DAMAGES 

mand  for  sucli  shoes  was  therefore  extraordinary,  and  a 
very  high  price  (4s.  per  pair)  was  accordingly  agreed  to 
be  paid.  Delivery  was  to  be  made  Feb.  3,  1871.  Before 
that  date  the  war  had  ended,  the  demand  for  such  shoes 
had  ceased  and  the  market  price  had  fallen  to  2s.  9d.  per 
pair.  Plaintiffs  sent  the  shoes  to  defendant's  station  in 
time  for  delivery  to  the  consignee  on  the  evening  of  Feb. 
3d  in  the  ordinary  course.  The  defendant's  agent  was 
notified  that  plaintiffs  were  under  a  contract  to  deliver 
the  shoes  by  the  3d,  and  that,  in  case  of  non-delivery,  the 
shipment  would  be  thrown  on  their  hands,  but  no  notice 
was  given  that  this  contract  provided  for  a  sale  at  what 
was  then  an  unusually  high  price.  Owing  to  defendant's 
negligence  the  shoes  did  not  reach  the  consignee  until  the 
4th,  when,  of  course,  they  were  rejected.  Plaintiffs  were 
obliged  to  sell  them  at  a  loss  of  Is.  3d.  per  pair,  obtaining 
for  them  the  market  price,  2s.  9d.  Following  Hadley  v. 
Baxendale,  the  court  said:  "The  damages  are  to  be  lim- 
ited to  those  that  are  the  natural  and  ordinary  conse- 
quences which  may  be  supposed  to  have  been  in  the  con- 
templation of  the  parties  at  the  time  of  the  making  of  the 
contract."  Applying  this  rule,  recovery  for  plaintiffs' 
loss  was  denied.  ''It  would  be  an  extraordinary  result  to 
arrive  at,  to  hold  that  a  mere  notice  to  the  carriers  that 
the  shoes  would  be  thrown  upon  the  hands  of  the  con- 
signors, if  they  did  not  reach  the  consignees  by  the  3d  of 
February,  should  fix  them  with  so  large  a  claim,  by  rea- 
son of  facts  which  were  existing  in  the  minds  of  the  con- 
signors, but  were  not  communicated  to  the  carriers  at  the 
time. ' ' 


COMPENSATOEY  DAMAGES  163 

§  53.    Same:    Further  illustration.    In  Booth  v.  Spuy- 
ten  Duyvil  Eolling  Mill  Co.  (9),  plaintiff  contracted  with 
the  New  York  Central  Railroad  Company  to  sell  and  de- 
liver to  it,  by  a  certain  date,  400  tons  of  steel  rails  to  be 
composed  of  an  iron  foundation  and  steel  caps,  for  the 
invention  of  which  plaintiff  had  obtained  a  patent.  There- 
after he  entered  into  a  contract  with  the  defendant,  w^here- 
by  the  latter  undertook  to  make  and  deliver  by  a  specified 
date  all  the  caps  which  would  be  required  for  the  execu- 
tion of  his  contract  with  the  railroad.     At  the  time  of 
making  their  contract,  plaintiff  informed  the  defendant 
of  the  existence  of  his  contract  with  the  railroad,  al- 
though defendant  was  not  informed  of  the  price  plaintiff 
was  to  receive  for  the  rails.    The  caps  alone  had  no  mar- 
ket value.    Had  they  been  furnished  at  the  agreed  time, 
plaintiff  could  have  performed  his  contract  with  the  rail- 
road.   They  were  not  furnished  at  all,  and  in  consequence 
plaintiff  lost  the  profits  of  that  contract.    For  this  loss 
he  brought  an  action.    On  the  trial  no  claim  was  made 
that  the  price  which  plaintiff  was  to  get  for  the  rails  was 
unreasonable.    The  lower  court  allowed  about  15  per  cent 
for  profits,  including  the  use  of  the  patent.    Held,  this 
was  not  unreasonable.     The  court  of  appeals  approved 
Hadley  v.  Baxendale  and  Home  v.  Midland  Ry.,  distin- 
guishing the  latter  on  the  grounds  that  there  the  article 
had  a  well-known  market  value  and  the  price  specified 
was  unusual.    The  court  said  in  part : 

"This  case  presents  all  the  elements  which  have  been 
recognized  for  the  application  of  the  rule  of  liability. 


(9)     60  N.  Y.  487. 


164  DAMAGES 

The  plaintiff  contracted  with  the  defendant  expressly  to 
enable  hira  to  perform  his  contract  with  the  railroad  com- 
pany, which  the  defendant  knew.  It  is  not  claimed  that 
the  price  at  which  the  completed  rails  were  agreed  to  be 
sold  was  extravagant  or  above  their  value ;  and,  as  there 
was  no  market  price  for  the  article,  the  fact  that  the  de- 
fendant was  not  informed  of  the  precise  price  in  the  sub- 
contract does  not  affect  its  liability.  Nor  does  the  fact 
that  the  defendant's  contract  does  not  embrace  the  entire 
article  resold,  relieve  it  from  the  consequences  of  non- 
performance. It  was  a  material  portion  of  the  rail,  with- 
out which  it  could  not  be  made ;  and,  solely  by  reason  of 
the  failure  of  the  defendant,  the  plaintiff*  failed  to  per- 
form his  contract,  and  thereby  lost  the  amount  for  which 
he  has  recovered." 

Section  4.  Avoidable  Consequences. 
§  54.  In  general.  In  discussing  the  extent  of  defend- 
ant's liability  for  the  consequences  of  his  tort  or  breach 
of  contract,  we  have  assumed  that  the  plaintiff  himself 
was  in  no  way  to  blame  for  any  of  the  harm  of  which  he 
complains.  If,  however,  the  circumstances  are  such  that 
we  may  fairly  attribute  any  item  of  damage,  suffered  by 
the  plaintiff,  to  his  own  neglect,  it  would  seem  to  be  axio- 
matic that  he  could  not  recover  damages  under  that  head. 
It  often  happens  that  a  plaintiff,  whose  right  has  been 
violated  and  who  therefore  has  a  good  cause  of  action  en- 
titling him  to  at  least  nominal  damages,  is  denied  sub- 
stantial damages,  in  whole  or  in  part,  on  the  ground  thai 
he  himself  is  wholly  or  partly  responsible  for  the  actual 
damage  he  has  sustained.    A  plaintiff  may  not  recover 


COMPENSATORY  DAMAGES  165 

compensation  for  damage  which  the  exercise  of  reason- 
able prudence  on  his  part  would  have  prevented.  The 
rule  is  of  general  application  in  tort  and  contract,  as  the 
following  cases  will  illustrate. 

§55.  Same:  Illustrations.  In  Loker  v.  Damon  (10), 
defendant  broke  down  a  part  of  plaintiff's  fence.  Plain- 
tiff neglected  to  repair  it  for  many  months.  In  the  mean- 
time cattle  got  in  and  destroyed  his  crop.  Had  he  acted 
with  reasonable  promptness  in  making  the  repairs  his 
crop  would  have  been  saved.  Held,  the  cost  of  repairing 
the  fence,  and  not  the  value  of  the  crop,  is  the  measure  of 
damages.  The  loss  of  the  crop  was  an  avoidable  con- 
sequence. In  Ind.  B.  &  "W.  Ey.  v.  Birney  (11),  defendant 
failed  to  stop  its  train  to  take  on  plaintiff,  as  it  was  de- 
fendant's duty  to  do.  Although  the  distance  was  long 
and  the  weather  extremely  cold,  he  walked  to  the  next 
station.  His  health  was  seriously  impaired  by  the  ex- 
posure and  over-exertion.  Evidence  was  offered  to  show 
that  he  could  have  taken  another  train,  or  procured  a 
horse  and  carriage.  Held,  it  was  error  for  the  court  be- 
low to  exclude  such  evidence.  It  would  have  proved  that 
the  journey  on  foot,  with  its  consequences,  was  attrib- 
utable to  the  plaintiff's  own  imprudence.  In  Sutherland 
V.  Wyer  (12),  defendants  employed  plaintiff,  an  actor,  to 
act  at  their  theatre  during  an  entire  season.  Without 
excuse  they  discharged  him  after  a  short  time.  He  could 
have  obtained  employment  at  acting  elsewhere,  but  did 
not  make  a  reasonable  effort  to  do  so.    Held,  his  recovery 


(10)  17  Pick.  284. 

(11)  71  111.  391. 

(12)  67  Me.  64. 


166  DAMAGES 

■will  be  restricted  to  the  stipulated  wages,  less  whatever 
sum  he  actually  earned,  or  might  have  earned  elsewhere 
by  the  use  of  reasonable  diligence;  '4n  contract  as  well 
as  in  tort,  it  is  generally  incumbent  upon  an  injured  party 
to  do  whatever  he  reasonably  can,  and  to  improve  all 
reasonable  and  proper  opportunities  to  lessen  the  injury." 

§  56.  Avoidable  consequences  and  contributory  negli- 
gence. The  doctrine  of  avoidable  consequences  needs  to 
be  distinguished  from  that  of  contributory  negligence, 
which  involves  a  similar  principle.  In  some  torts,  as  we 
have  seen,  damage  is  essential  to  injury;  a  cause  of  action 
is  not  made  out  until  actual  damage  is  proved.  One  of 
these  actions  is  that  for  negligence.  An  action  for  neg- 
ligence is  not  complete  until  damage  befalls  the  plaintiif 
as  a  legal  consequence  of  defendant 's  negligent  act ;  but, 
if  the  resulting  damage  is,  in  the  eye  of  the  law,  a  con- 
sequence of  the  union  of  plaintiff's  own  negligence  with 
that  of  the  defendant,  we  have  a  case  of  contributory 
negligence  and  a  right  of  action  usually  does  not  accrue. 
See  Torts,  §§  191-200,  in  Volume  II  of  this  work.  The 
doctrine  of  avoidable  consequences,  on  the  other  hand, 
assumes  an  existing  cause  of  action.  To  illustrate: 
Plaintiff  is  thrown  to  the  ground  and  liis  arm  broken  by 
the  starting  of  defendant's  street-car,  while  he  is  in  the 
act  of  boarding  it.  By  the  law  of  torts  his  right  of  action 
depends  upon  the  concurrence  of  two  conditions:  (1)  neg- 
ligence on  the  part  of  defendant  in  starting  the  car; 
(2)  due  care  upon  the  part  of  plaintiff  in  boarding  it. 
Assuming  that  both  of  these  conditions  were  present,  his 
right  of  action  is  completed  by  the  breaking  of  his  arm. 


COMPEXSATOEY  DAMAGES  167 

The  plaintiff  now  fails  to  see  a  surgeon.  For  want  of 
proper  surgical  attention  the  broken  bone  heals  im- 
properly, and  the  usefulness  of  the  aiTti  is  permanently 
impaired.  His  recovery  is  restricted  to  compensation  for 
such  damage  as  would  have  followed  had  he  acted  reason- 
ably and  obtained  surgical  aid ;  he  cannot  recover  for  the 
element  of  aggravation— that  was  an  avoidable  conse- 
quence. 

§  57.  Limitations  of  doctrine.  The  doctrine  is  subject 
to  necessary  limitations.  The  plaintiff  need  not  exercise 
omniscience.  His  conduct  is  to  be  measured  by  the 
standard  of  ordinary  prudence.  Thus,  if  he  exercises 
reasonable  care  in  selecting  a  surgeon  to  care  for  the 
wound  that  defendant  has  inflicted,  he  will  not  be  deemed 
an  insurer  against  the  surgeon's  error  of  judgment  or 
want  of  the  highest  skill  (13).  Neither  will  he  be  re- 
quired to  incur  a  risk  of  additional  loss,  in  an  effort  to 
avoid  the  consequences  of  defendant's  wrong  (14).  And, 
of  course,  he  need  do  nothing  in  itself  unlawful ;  the  de- 
fendant cannot  be  heard  to  say  that  a  part  of  plaintiff 's 
damage  results  from  his  unwillingness  to  break  a  contract 
with  a  third  person  (15),  to  trespass  upon  his  neighbor's 
property  (16),  or  to  engage  in  fraudulent  practices  (17). 

§  58.  Recovery  of  expenses  incurred  in  avoiding  conse- 
quences. It  would  be  unreasonable  to  hold  that  plaintiff 
must  be  put  to  expense,  in  order  to  save  the  defendant 


(13)  Loeser  v.  Humphrey,  41  Ohio  St.  378. 

(14)  McCleneghan  v.  Omaha  etc.  R.  Co.,  25  Neb.  523. 

(15)  Leonard  v.  N.  Y.  etc.  Tel.  Co.,  41  N.  Y.  544,  566. 

(16)  Fromm  v.  Ide,  68  Hun,  310. 

(17)  Baker  v.  Lever,  67  N.  Y.  310. 

Vol.  X— 13 


168  DAMAGES 

from  paying  damages  for  avoidable  consequences.  On 
the  other  hand,  it  would  needlessly  pile  up  damages  in 
many  cases  to  permit  plaintiff  to  recover  for  all  damage 
that  could  not  be  avoided  without  expense  to  somebody. 
Accordingly  the  law  adopts  the  rule  of  indemnity :  Plain- 
tiff must  do  whatever  is  reasonable ;  defendant  must  re- 
imburse plaintiff  for  all  expenses  incurred  in  so  doing. 
And  this  rule  is  followed,  although  its  application  some- 
times has  the  effect  of  actually  increasing  the  damages 
which  defendant  must  pay.  Thus,  where  plaintiff's  horse 
was  seriously  injured  by  defendant's  negligence,  and 
plaintiff,  in  the  exercise  of  reasonable  care,  expended 
$35  procuring  medical  treatment,  notwithstanding  which 
the  horse  died,  he  was  allowed  to  recover  this  item  as  well 
as  the  value  of  the  horse  (18).  On  the  other  hand,  since 
plaintiff  is  not  required  to  make  more  than  a  reasonable 
effort  to  avoid  damage,  he  will  not  be  indemnified  for 
expenses  incurred  in  an  unreasonable  effort.  Thus,  it 
was  held  that  a  passenger  could  not  recover  for  the  ex- 
pense of  hiring  a  special  train,  which  he  took  for  the  pur- 
pose of  reaching  his  destination  to  avoid  delay  occasioned 
by  defendant's  negligence,  it  appearing  that  there 
was  no  urgent  necessity  for  his  presence  at  his  destina- 
tion (19). 


(18)  Ellis  V.  Hilton,  78  Mich.  288. 

(19)  Le  Blanclie  v.  Loudon  &  N.  W.  R.  Co.,  1  C.  P.  D.  286. 


COMPENSATORY  DAMAGES  169 


CHAPTER  V. 

MEASURE  OF  DAMAGES. 

Section  1.    Forms  of  Damage  Compensated. 

§  59.  In  general.  Tlie  law  does  not  undertake  to  com- 
pensate, as  legal  damage,  every  sort  of  harm  known,  to 
human  experience.  Some  forms  of  harm  are  not  uni- 
versal; they  depend  upon  individual  peculiarities  and 
temperament.  Others  are  vague  and  intangible,  difficult 
to  establish  by  proof,  difficult  to  trace  to  a  responsible 
source.  Viewing  the  problem  as  one  to  be  solved  for 
society  as  a  whole,  subject  to  the  necessary  limitations 
of  court  procedure,  the  law  has  recognized  only  certain 
forms  of  harm  as  calling  for  compensation.  They  con- 
stitute the  items  of  damage,  the  heads  of  recovery,  upon 
the  basis  of  which  compensatory  damages  are  computed. 

§  60.  Pecuniary  damage.  Some  forms  of  damage  are 
universally  estimated  in  terms  of  money.  This  is  neces- 
sarily so  when  money  itself  has  been  lost.  And  money  is 
the  natural  standard  of  measurement  when  goods  are 
lost  or  destroyed,  when  land  is  taken  or  injured,  when 
valuable  time  is  lost,  and  when  an  advantageous  con- 
tract is  broken.  Such  forms  of  damage  are  known  as 
pecuniary.  They  are  always  compensated  by  the  allow- 
ance of  an  equivalent,  estimated  by  monetary  standards. 


170  DAMAGES 

§  61.  Non-pecuniary  damage.  All  forms  of  damage 
are  pecuniary,  in  the  sense  that  they  must  be  compensated 
in  money  if  at  all ;  but  some  forms  are  non-pecuniary,  in 
the  sense  that  they  are  not  commonly  measured  by  pe- 
cuniary standards.  Men  do  not  ordinarily  measure  the 
intensity  of  physical  pain  or  mental  suffering  in  terms 
of  dollars  and  cents.  When  compensation  for  such  forms 
of  harm  is  allowed,  the  damages  are  said  to  be  at  large, 
or  in  the  discretion  of  the  jury.  Some  forms  of  non- 
pecuniary  harm  are  altogether  rejected,  as  being  too 
vague  or  refined  for  ascertainment  under  our  system  of 
procedure.  Some  of  the  heads  of  non-pecuniary  damage 
will  now  be  considered  separately. 

§  62.  Physical  pain.  Compensation  is  universally  al- 
lowed for  physical  pain,  resulting  as  a  legal  consequence 
from  defendant's  tort  or  breach  of  contract  (1). 

§  63.  Physical  discomfort  and  inconvenience.  Physical 
discomfort  is  also  a  well-recognized  head  of  damage.  Re- 
cover}^ is  common  in  actions  for  nuisances,  for  discomfort 
caused  by  loud  noises  or  disagreeable  odors  (2).  For  in- 
convenience, such  as  fatigue,  recovery  is  also  allowed, 
whether  the  action  be  tort  or  contract  (3). 

§  64.  Mere  annoyance.  For  mere  annoyance,  such  as 
disappointment  resulting  from  the  delay  of  a  train,  no 
damages  may  be  assessed  (4).  Compensation  for  such 
forms  of  harm  is  impracticable  under  the  jury  system. 


(1)  Ilobbs  V.  Loiulou  &  Soutliwesteru  Ry..  L.  R.  10  Q.  P>.  111. 

(2)  B.  &  P.  R.  Co.  V.  First  Baptist  Church,  lOS  U.  S.  317. 

(3)  ITobbs  V.  London  &  Southwestern  Ry..  L.  R.  10  Q.  B.  111. 

(4)  HamUu  v.  Great  Northern  Ry.  Co.,  1  II.  &  N.  408. 


COMPENSATORY  DAMAGES  171 

§  65.  Mental  suffering.  The  law  is  not  well  settled  as 
to  the  conditions  under  which  mental  suffering  will  be 
compensated.  Ordinarily  this  head  of  damage  is  not 
recognized  in  actions  on  contract,  but  actions  for  breach 
of  promise  of  marriage  constitute  a  well-recog-nized  excep- 
tion (5).  In  actions  of  tort  the  recovery  of  damages  for 
mental  suffering  depends  largely  upon  the  nature  of  the 
wrong  by  which  it  was  caused.  For  mental  suffering  in  the 
form  of  insult  or  injured  feelings,  compensation  may  be 
had  in  the  case  of  a  malicious  tort,  whether  the  right  pri- 
marily involved  relates  to  person  or  property  (6).  When 
the  tort  is  not  wilful,  recoveiy  for  insult  would  of  course 
be  out  of  place,  and,  in  such  case,  recovery  for  mental  suf- 
fering will  usually  be  allowed  only  where  a  physical  in- 
jury is  inflicted  upon  the  plaintiff  (7).  For  mental  an- 
guish or  nervous  shock,  accompanying  or  flowing  from 
actual  physical  injury,  compensation  will,  as  a  rule  be 
granted  (8). 

Section  2.    Estimation  of  Non-Pecuniary  Damages. 

§  66.  Discretion  of  jury.  Where  the  rights  violated 
are  purely  personal,  as  in  the  case  of  assault,  libel,  or 
false  imprisonment,  the  damages  are  within  the  discre- 
tion of  the  jury,  subject  only  to  the  limitation  of  what  is 
reasonable.  Where,  however,  pecuniary  losses  can  be 
proved,  with  sufficient  certainty,  to  have  resulted  as  a 
legal  consequence  of  such  an  injury,  allowance  therefor 


(5)  Vanderpool  v.  Richardson,  52  Mich.  336. 

(6)  Meagher  v.  Driscoll,  99  Mass.  281. 

(7)  Wyman  v.  Leavltt,  71  Me.  227. 

(8)  Chicago  v.  McLean,  133  111.  148. 


172  DAMAGES 

should  be  made.  Examples  of  such  losses  are  loss  of  time, 
loss  of  income,  and  expenses  of  nursing  and  medical  at- 
tendance (9-10). 

§67.  Aggravation  and  mitigation.  In  the  chapter 
upon  exemplary  damages  (§§  16-21,  above),  we  have  seen 
that  circumstances  of  aggravation  may  be  given  in  evl- 
dence  in  actions  for  wilful  torts,  as  a  basis  for  the  assess- 
ment of  punitive  damages.  In  like  manner,  circumstances 
of  mitigation  may  be  shown  for  the  purpose  of  reducing 
the  damages.  Sometimes  they  are  relied  upon  as  tending 
to  show  that  the  actual  damage  is  of  limited  extent,  as 
where  evidence  of  plaintiff's  bad  reputation  is  given  in 
an  action  for  libel  or  slander  (11).  More  often  they  are 
introduced  to  counteract  evidence  in  support  of  exemplary 
damages,  as  where  evidence  of  provocation  is  shown  in 
an  action  of  assault  and  battery.  There  is  a  question, 
whether  bad  motive  on  the  part  of  jDlaintiff  should  ever 
have  the  effect  of  reducing  his  damages  for  actual  damage 
proved ;  but  it  is  settled  that  it  should  be  considered  when 
the  question  is  as  to  exemplary  damages.  It  would  be 
unjust  to  punish  the  defendant  for  acting  maliciously,  if 
plaintiff's  own  malicious  conduct  were  disregarded  (12). 

Section"  3.     Computation  of  Pecuniary  Damages. 

§  68.  In  general.  When  the  damage  is  pecuniary,  the 
jury  must  act  within  limits  imposed  by  the  law's  ideal 
of  exact  compensation.  Such  compensation  ordinarily 
means  the  i^ajinent  of  the  monetary  equivalent  of  that 


(9-10)     Phillips  V.  London  &  S.  W.  R.  Co.,  L.  R.  4  Q.  B.  Div.  40G. 

(11)  Slcki-ii  V.  Small.  87  Me.  493. 

(12)  Cushmaa  v.  Waddell,  1  Baldw.  59. 


COMPENSATOEY  DAMAGES  173 

which  has  been  lost.    The  methods  of  ascertaining  this 
equivalent  will  now  be  considered. 

§  69.  Value  as  a  measure  of  damages.  The  normal 
measure  of  damages  for  a  contract  broken,  or  for  property 
lost,  destroyed,  or  damaged  is  that  of  value.  In  the  case 
of  a  contract  this  is  measured  by  the  advantage  lost ;  ac- 
cording to  the  purpose  of  the  contract  this  loss  may  ap- 
pear in  various  ways,  as  a  loss  of  wages,  a  loss  of  profits, 
or  perhaps  a  loss  of  property,  to  preserve  or  protect 
which  the  contract  was  made.  If  plaintiff  has  lost  wages, 
his  measure  of  damages  is  the  wages  he  has  earned  or 
might  have  earned  in  similar  employment  elsewhere  (13). 
Usually  the  value  of  a  contract  is  measured  by  profits 
lost.  Granted  that  the  requirements  of  Hadley  v.  Baxen- 
dale  (§  51,  above)  are  satisfied,  the  only  question  is  as  to 
certainty  of  proof.  If  the  contemplated  profits  were 
purely  speculative,  recovery  would  of  course  be  denied. 
Where  profits  can  be  shown  with  certainty  to  have  been 
lost,  recovery  may  be  had  although  exact  measurement 
is  impossible— however  roughly  they  must  be  estimated, 
they  are  taken  as  representing  the  value  of  the  con- 
tract (14).  In  some  cases  the  profits  lost  are  capable  of 
being  ascertained  with  exactness.  The  frequent  occur- 
rence of  certain  classes  of  cases  has  resulted  in  the 
crystalization  of  a  few  rules  of  exactness  that  are  ap- 
plicable to  such  cases.  Thus  the  difference  between  the 
contract  price  and  the  market  value,  at  the  time  and 
place  of  delivery,  is  the  usual  measure  of  damages  for 


(13)  Sutherland  v.  Wyer,  67  Me.  64. 

(14)  Bagley  v.  Smith,  10  N.  Y.  489. 


174  DAMAGES 

the  breach  of  a  contract  of  sale  (15).  And  the  measure 
of  damages  for  delay  in  carrying  goods  is  the  difference 
between  the  market  value,  at  the  time  and  place  of  de- 
livery as  required  by  the  contract,  and  the  same  value  at 
the  time  of  actual  delivery  (16).  The  difference  in  each 
case  represents  the  value  of  the  contract. 

§  70.  Market  price  as  a  test  of  value.  When  the  ques- 
tion is  as  to  the  value  of  property,  whether  as  the  subject 
of  a  contract  of  sale  or  carriage,  or  as  the  object  of  an 
injury,  the  market  price  is  the  usual  standard.  This  is 
because  the  market  price  is  ordinarily  an  accurate  gauge. 
So  much  reliance  is  placed  upon  this  standard  that,  in  the 
absence  of  a  market  at  the  place  of  injury,  resort  will  be 
had  to  the  nearest  available  market  in  order  to  arrive  at 
the  actual  value  (17).  If,  however,  the  market  price 
is  demonstrably  an  unfair  test,  it  will  be  rejected.  This 
is  clearly  the  case  where  the  market  price  is  a  result  of 
fraudulent  manipulation;  obviously  it  does  not  measure 
the  true  value ;  the  law  makes  an  allowance  for  the  effect 
of  the  disturbing  factor  (18).  Sometimes  there  is  a 
market  price,  but,  owing  to  peculiar  circumstances,  that 
price  does  not  represent  the  real  value  to  the  owner,  nor 
fairly  measure  his  loss.  Thus  the  fact  that  there  is  a 
market  for  second-hand  clothes  did  not  prevent  a  plaintiff 
from  recovering  the  value  of  a  portmanteau  of  clothes, 
upon  the  basis  of  their  usefulness  and  special  value  to 


(15)  Johnson  v.  Allen,  78  Ala.  387. 

(16)  Ward  V.  N.  Y.  Cent.  R.  Co.,  47  N.  Y.  29. 

(17)  Grand  Tower  Co.  v.  Phillips,  23  Wall.  471. 

(18)  Kountz  V.  Kirkpa trick,  72  Pa.  St.  37G. 


COMPENSATORY  DAMAGES  175 

him  (19).  Sometimes  the  goods  are  not  saleable  at  all, 
and  yet  their  value  to  the  owner  may  be  considerable. 
In  such  case,  a  fixed  standard  is  impossible;  the  jury 
must  be  given  a  discretion  jipproaching  that  which  it  ex- 
ercises in  a  personal  injury  case,  or  the  plaintiff  will  go 
without  a  remedy.  The  law  does  not  put  exactness  before 
justice,  and  accordingly  allows  the  jury  to  fix  the  damages 
upon  the  broad  basis  of  what  is  reasonable  under  all  the 
circumstances.  Thus,  where  the  question  arose  as  to  an 
oil  portrait  of  the  plaintiff's  father,  which  was  of  value 
only  to  plaintiff,  it  was  held  that  evidence  as  to  the 
original  cost,  the  practicability  and  expense  of  replacing 
it,  and  the  fact  that  plaintiff  had  no  other,  was  proper 
for  the  consideration  of  the  jury  (20). 

§  71.  Higher  intermediate  value.  What  has  heretofore 
been  said  in  regard  to  value,  as  a  test  for  determining  the 
extent  of  plaintiff's  loss,  has  been  upon  the  assumption 
that  the  property  involved  was  of  normally  stable  value. 
Often,  however,  the  value  of  property  is  subject  to  wide 
and  frequent  fluctuations.  In  such  cases  a  serious 
problem  is  presented.  The  question  most  frequently 
arises  where  property  is  converted  or  appropriated  by 
the  defendant  to  his  own  use.  The  general  rule  for  con- 
version makes  the  value  of  the  property  at  the  time  of  the 
conversion  the  test  (21) ;  but,  where  the  property  fluctu- 
ates in  value,  this  may  bear  with  hardship  upon  the 
plaintiff,  who  may  have  held  the  property  in  the  expecta- 
tion of  an  increase  in  value.    To  insure  full  compensa- 


(19)  Fairfax  v.  X.  Y.  Cent.  &  H.  R.  R.  R.,  73  N.  Y.  167. 

(20)  Green  v.  B,  &  L.  R.,  12S  Mass.  221. 

(21)  Beede  v.  Lamprey,  64  N.  H.  510. 


176  DAMAGES 

tion  to  the  plaintiff,  some  courts  allow  tlie  highest  inter- 
mediate value,  i.  e.,  the  highest  market  value  of  the  article 
between  the  date  of  conversion  and  the  date  of  trial  (22) ; 
but  this  often  works  a  hardship  upon  the  defendant,  for 
it  is  by  no  means  certain  that  the  plaintiff  would  have 
sold  at  the  highest  market  price.  Many  other  courts 
take  a  middle  course,  and  hold  that  compensation  in  such 
cases  is  properly  made  by  allowing  the  highest  market 
value  of  the  property,  that  is  reached  within  such  a  time, 
after  plaintiff  has  received  notice  of  the  conversion,  as 
will  affbrd  him  a  reasonable  opportunity  for  replacing 
the  property  converted  (23).  Here  will  be  seen  an  ap- 
plication of  the  doctrine  of  avoidable  consequences.  This 
middle  ground  represents  the  prevailing  view,  when  the 
property  is  in  the  form  of  stocks  (24).  Where  the  prop- 
erty is  of  fluctuating  character,  but  stocks  are  not  in- 
volved, the  alignment  of  the  courts  is  very  different,  the 
weight  of  authority  favoring  the  application  of  the  gen- 
eral rule  for  ordinary  cases  of  conversion  (25). 

§  72.  Deduction  for  benefits  conferred:  By  defendant. 
Several  questions  arise  with  regard  to  the  deduction  to 
*  be  made  for  benefits  conferred  upon  the  plaintiff.  Where, 
after  damage  has  been  inflicted,  the  plaintiff  has  accepted 
reparation  in  whole  or  in  part  from  the  defendant,  this 
must  of  course  be  considered  as  reducing  the  damages  to 
the   extent   of  the   value   of  that  which  has   been   re- 


(22)  Burks  v.  Hubbard,  C9  Ala.  379. 

(23)  Baker  v.  Drake,  53  N.  Y.  211. 

(24)  Gallgher  v.  Jones.  129  U.  S.  193. 

(25)  See  cases  cited,  13  Cyc.  171. 


COMPEXSATOEY  DAMAGES  177 

ceived  (26).  A  common  case  is  the  return  of  property 
which  has  been  tortiously  taken.  But  a  defendant  cannot 
compel  the  plaintiff  to  accept  reparation ;  the  unaccepted 
tender  of  property  by  way  of  reparation  is  of  no 
effect  (27).  Sometimes,  the  very  act  which  inflicts  the 
damage  also  confers  a  benefit.  In  such  a  case  the  courts 
regard  the  net  result  as  measuring  the  actual  damage 
inflicted  by  the  wrongful  act.  Thus,  where  the  damage 
consisted  in  placing  a  large  quantity  of  earth  upon  plain- 
tiff's land,  the  court  declined  to  allow  him  what  it  would 
cost  to  remove  the  earth,  but  said  that  the  actual  damage 
sustained  could  be  determined  only  by  considering  and 
allowing  for  such  benefits  as  might  have  arisen  from  plac- 
ing the  earth  upon  the  land  (28).  So  much  for  benefits 
conferred  by  the  defendant. 

§  73.  Same:  By  third  party.  Frequently  the  benefit 
i'S  conferred  by  a  third  person.  When  the  plaintiff  ac- 
cepts a  benefit  from  a  third  person,  this  benefit  will  not 
inure  to  the  defendant  by  way  of  reducing  his  damages. 
In  reliance  upon  this  rule,  decisions  have  been  rendered 
which  seem  at  first  blush  to  involve  hardship  upon  the  de- 
fendant. Thus,  it  has  been  held  that  the  recovery  of  a 
plaintiff,  entitled  to  compensation  for  loss  of  time,  will 
be  unaffected  by  an  employer's  generosity  in  paying 
plaintiff  his  full  salary  during  the  period  of  idleness  en- 
forced by  defendant's  wrong  (29).  It  has  also  been  held 
that  a  plaintiff,  entitled  to  compensation  for  necessary 


(26)  Torry  v.  Black,  58  N.  Y.  185. 

(27)  Carpenter  v.  Dresser,  72  Me.  377. 

(28)  Mayo  v.  Springfield,  138  Mass.  70. 

(29)  Elmer  v.  Fessenden,  154  Mass.  427. 


178  DAMAGES 

nursing  and  medical  attendance  as  a  result  of  a  personal 
injury,  could  recover  their  full  value,  notwithstanding  the 
services  of  nursing  were  donated  by  a  friend  (30).  In 
these  cases,  the  benefit  is  looked  upon  as  a  gift  to  the 
plaintiff,  the  bestowal  of  which  is  immaterial  as  regards 
the  defendant.  Sometimes,  the  benefit  is  conferred  by  a 
third  person  acting  under  a  contract  with  the  plaintiff. 
In  such  case,  as  between  plaintiff  and  defendant,  the  per- 
formance of  the  third  person's  undertaking  is  regarded 
simply  as  a  contractual  right  of  the  plaintiff.  Thus,  a 
plaintiff  recovers  the  full  value  of  goods  wrongfully  taken 
by  the  defendant,  although  they  have  been  subsequently 
destroyed  by  fire  and  the  plaintiff  has  recovered  their 
full  value  from  an  insurance  company  under  a  policy  ex- 
ecuted by  it  in  his  favor  (31). 

§  74.  Interest.  Since  a  plaintiff  is  entitled  to  compen- 
sation, as  soon  as  his  cause  of  action  accrues,  it  might 
seem  that,  in  all  cases  in  which  compensation  is  awarded, 
the  damages  should  include  interest  down  to  the  time  of 
recovery,  as  compensation  for  the  use  of  money  which 
ought  to  have  been  paid  as  damages  immediately  upon 
the  infliction  of  the  damage.  When  the  damage  is  pe- 
cuniary, this  principle  appears  to  be  recognized.  In  such 
cases  interest  is  generally  allowed,  either  as  matter  of 
right  or  as  coming  within  the  discretion  of  the  jury.  It 
is  recoverable  as  of  right  upon  judgments  (32),  upon  all 
liquidated  demands  (33),  and  upon  contracts  which  pro- 


(30)  Brosnan  v.  Sweetser,  127  Tnd.  1. 

(31)  Perrntt  v.  Slioaror,  17  Mich.  48. 

(32)  Maluirin  v.  Bickford,  0  N.  11.  5G7. 

(33)  Dodse  v.  Perkins, «)  IMck.  3ns. 


COMPENSATORY  DAMAGES  179 

vide  for  it  expressly  or  impliedly.  It  is  sometimes  al- 
lowed under  rules  of  damages  applicable  to  particular 
classes  of  actions,  as  in  those  for  breach  of  a  contract  of 
sale  (34)  or  of  carriage  (35),  and  in  actions  for  the  con- 
version of  property  (36).  In  other  cases  of  pecuniary 
damage,  interest  is  not  allowable  as  a  matter  of  right, 
but  the  jury  is  permitted  to  consider  interest  as  allowable 
within  its  discretion;  such  a  case  is  an  action  for  the  neg- 
ligent destruction  of  property  (37).  In  one  case  of  un- 
doubted pecuniary  damage,  interest  is  never  allowed  in 
the  absence  of  a  valid  agreement  therefor ;  as  a  matter  of 
policy,  the  law  guards  against  the  dangers  of  compound 
interest,  and  will  not  allow  interest  as  compensation  for 
delay  in  the  payment  of  interest  due  (38).  When  the 
damage  is  in  its  nature  non-pecuniary,  as  in  an  action  for 
personal  injury,  interest  is  never  allowed  (39) ;  but  the 
wide  discretion  of  the  jury,  together  with  the  practice  of 
allowing  prospective  damages,  doubtless  amounts  to  a 
practical  equivalent  in  most  cases. 

§  75.  Expenses  of  litigation.  The  plaintiff  who  is  com- 
pelled to  resort  to  litigation,  in  order  to  obtain  a  remedy 
for  the  wrong  done  by  the  defendant,  necessarily  incurs 
expense.  This  expense  is  very  substantial  pecuniary 
harm,  and  it  is  occasioned  by  the  defendant.  Is  it  an  item 
of  pecuniary  damage  for  which  an  allowance  is  made? 


(34)  Dana  v.  Fiedler,  12  N.  Y.  40. 

(35)  Houston,  etc.  R.  Co.  v.  Jackson.  62  Tex.  209. 

(36)  Andrews  v.  Dnrant,  18  N.  Y.  496. 

(37)  Richards  v.  Gas  Co.,  130  Ta.  St.  37. 

(38)  Henry  v.  Flagg,  13  Met.  64. 

(39)  L.  &  N.  R.  Co.  V.  Wallace,  91  Tenn.  35. 


180  DAMAGES 

It  is  a  familiar  rule  that  the  unsuccessful  litigant  pays 
the  costs  of  the  action ;  but  such  payment  is  not  regarded 
as  the  pa}Tnent  of  damages  for  a  wrong  done.  Costs  are 
due  from  the  innocent  plaintiff,  who  has  failed  in  an  at- 
tempt to  obtain  a  remedy  by  exercising  his  right  to  liti- 
gate, as  well  as  from  a  defendant  who  has  clearly  vio- 
lated the  plaintiff's  right.  They  are  a  conditional  incident 
to  litigation,  rather  thaii  an  element  of  damages.  In  Amer- 
ica the  costs  do  not  include  counsel  fees.  In  the  absence 
of  express  contract  or  statute,  they  are  not  recoverable 
either  as  costs  or  as  damages  in  an  ordinary  case  (40). 
They  are  allowed  as  an  item  of  compensatory  damages, 
when  defendant's  wrong  has  proximately  caused  plaintiff 
to  engage  in  litigation  with  \  third  person  (41).  In  some 
jurisdictions  they  may  also  be  given  in  evidence  as  bear- 
ing upon  the  question  of  exemplary  damages  (42).  But, 
as  a  general  rule,  neither  costs  nor  counsel  fees  are 
deemed  a  proper  basis  for  the  assessment  of  damages. 
The  reason  may  perhaps  be  found  in  the  difficulty  of  de- 
termining whether  or  not  litigation  is  a  j^roximate  con- 
sequence of  defendant's  wrong;  perhaps  also  in  public 
policy,  which  might  well  oppose  the  placing  of  too  heavy 
penalties  upon  the  unsuccessful  litigant. 

Section  4.    Limitations  Imposed  by  Nature  of 
Plaintiff's  Interest. 
§  76.    In  general.    Heretofore,  we  have  assumed  that 
the  defendant 's  wrongful  act  or  omission  has  been  a  viola- 


(40)  Day  v.  Woodworth,  13  How.  363. 

(41)  Philpot  V,  Taylor,  75  111.  300. 

(42)  Welch  V.  Durand,  36  Conn.  182. 


COMPENSATORY  DAMAGES  181 

tion  of  the  right  of  one  person  only ;  but  it  often  happens 
that  his  conduct  has  constituted  a  legal  injury  to  two 
or  more.  In  such  case  it  is  plain  that  each  party  is  en- 
titled to  full  compensation  for  all  the  damage  sustained 
by  him.  If  defendant's  negligence  causes  a  train  wreck 
and  a  score  of  passengers  are  injured,  it  is  evident  that 
the  right  of  one  passenger  to  recover  full  damages  will 
be  unaffected  by  defendant's  duty  to  compensate  the 
others.  If  in  the  same  wreck  each  passenger 's  baggage  is 
destroyed,  his  right  to  full  compensation  for  his  property 
loss  is  none  the  less  clear.  If,  however,  a  defendant's 
wrong-doing  has  resulted  in  damaging  property  in  which 
more  than  one  person  has  an  interest,  the  operation  of 
the  principle,  though  none  the  less  certain,  is  not  so  ob- 
vious. Of  course,  if  the  general  ownership  is  simply 
divided  among  several  persons,  one  having  say  a  half 
interest,  another  a  fourth,  and  so  on,  no  difficulty  arises ; 
this  introduces  but  a  simple  matter  of  arithmetical  com- 
putation. But  interests  in  property  are  not  confined  to 
sharing  the  general  ownership.  The  hirer,  the  lessee,  the 
mortgagee,  the  mere  possessor,  all  have  an  interest.  How 
shall  the  owner  of  such  a  limited  interest  be  compensated? 
In  answering  this  question  realty  and  personalty  must  be 
separately  considered. 

§  77.  Interests  in  realty.  Various  persons  may  have 
different  interests  in  the  same  land.  When  such  a  tract 
is  damaged,  each  person  is  entitled  to  compensation  for 
his  actual  loss,  as  measured  by  the  extent  of  his  own  in- 
terest. A  hypothetical  case  will  illustrate  this:  M,  a 
widow,  has  a  life  interest  in  land  which  was  the  property 


182  DAMAGES 

of  her  late  husband.  Upon  her  death,  his  son  and  heir, 
X,  will  come  into  full  ownership.  The  two  unite  in  ex- 
ecuting a  lease  to  K  for  a  term  of  years.  Defendant 
wi'ongf ully  floods  the  land ;  K  's  growing  crop  is  destroyed, 
much  of  the  soil  is  carried  away,  and  so  much  debris  is 
deposited  that  much  of  the  tract  is  rendered  unfit  for 
cultivation.  In  such  a  case  M  could  recover  for  the  loss 
in  value  of  her  life  estate,  which  would  be  estimated  upon 
the  basis  of  its  rental  value,  her  exj^ectation  of  life,  and 
the  probable  expenses  incident  to  her  interest  (43) ;  X 
could  recover  for  the  depreciation  in  the  value  of  his  re- 
versionary interest  (44) ;  and  K  could  recover  an  amount 
measured  by  the  value  of  the  crop  destroyed,  plus  the  loss 
in  the  value  of  his  unexpired  term  (45). 

§  78.  Interests  in  personalty.  The  law  with  regard 
to  interests  in  personalty  is  less  simple.  Owing  perhaps 
to  considerations  of  j^olicy  gi'owing  out  of  the  movable 
character  of  personal  property,  possession  thereof  gives 
an  owner's  rights  against  a  stranger.  Against  one  who 
has  no  title  or  interest  whatever,  possession  alone  gives 
a  right  to  full  damages  for  personalty  wrongfully  taken ; 
the  damages  paid,  the  possessor  becomes  a  trustee  of  the 
proceeds  for  the  benefit  of  the  owner  (46).  Thus,  where 
a  chimney-sweep  found  a  jewel  and  took  it  to  a  goldsmith, 
whose  servant  wrongfully  removed  the  stones,  the  sweep 
recovered  the  full  value  of  the  stones  from  the  smith  (47). 


(43)  Greer  v.  New  York,  1  Abb.  Tr.  (N.  S.)  200. 

(4-1)  Dorsoy  v.  Moore,  100  N.  C.  41. 

(45)  GraJKl  Rapids  Booming  Co.  v.  Jarvis,  30  Micli.  308. 

(46)  Lyle  v.  Barker,  5  Blnney,  457. 

(47)  Armory  v.  Delamirie,  1  Stra.  505. 


COMPENSATOKY  DAMAGES  183 

Had  the  owner  appeared  later,  he  could  have  looked  to 
the  sweep  for  comiDensation.  In  case  the  question  arises 
between  the  general  owner  and  one  having  a  special  in- 
terest, a  different  rule  prevails.  It  would  be  absurd  to 
allow  either  to  recover  the  full  value  of  the  chattel  from 
the  other,  and  then  treat  him  as  a  trustee  of  the  proceeds 
to  the  extent  of  the  other's  interest.  To  simplify  matters, 
the  law  measures  the  recovery  of  either  by  the  extent  of 
his  interest.  Thus,  where  plaintiff  bought  a  drove  of 
sheep  on  credit  and  left  them  with  the  vendor,  who  wrong- 
fully sold  them,  it  was  held  that  plaintiff's  damages  must 
be  measured  by  his  actual  loss,  which  would  be  the  dif- 
ference between  the  value  of  the  sheep  at  the  time  of  the 
wrongful  sale  and  the  price  he  had  agreed  to  pay  for 
them  (48) .  In  such  a  case,  his  damages  would  be  nominal, 
unless  the  value  at  the  time  of  sale  were  substantially 
above  the  purchase  price. 


(48)     Chinery  v.  Viall,  5  M.  &  W.  288. 


Vol.  X— 14 


184  DAMAGES 


CHAPTER  VI. 
DAMAGES  IN  CERTAIN  IMPORTANT  ACTIONS. 

§  79.  Special  rules  applicable  in  certain  actions.  In 
most  actions  the  measure  of  damages  is  simply  the  re- 
sultant of  the  operation  of  those  rules  of  a  general  char- 
acter which  are  applicable  to  the  facts  of  the  particular 
case.  In  considering  these  general  rules  in  the  preceding 
chapters,  we  have  necessarily  dealt  with  their  operation 
in  various  actions  of  both  contract  and  tort.  Some  ac- 
tions, however,  are  of  such  frequent  occurrence,  or  pre- 
sent such  peculiar  features,  that  the  courts  have  come  to 
recognize  special  rules  for  determining  the  measure  of 
damages  when  these  actions  are  being  maintained.  Some 
of  the  more  important  of  these  rules  will  now  be  con- 
sidered. Naturally  some  of  the  most  important  of  them 
have  to  do  with  the  sales  of  goods. 

Section  1.    Actions  Relating  to  Sales  of  Goods. 

§  80.  Distinction  between  sales  and  contracts  to  sell.  A 
sale  of  personalty  occurs  when,  by  agreement  of  the 
parties,  title  passes  from  the  vendor  to  the  vendee  for  a 
price  in  money.  The  completed  sale  leaves  the  vendee 
with  all  the  vendor's  former  right  of  property  in  the 
thing  sold.  With  the  passage  of  title,  the  vendor's  right 
to  the  agreed  price  becomes  fixed ;  a  breach  by  the  vendee 


SPECIAL  EULES  185 

will  consist  of  a  failure  to  pay.  Wlien  the  title  has 
passed,  the  vendor  can  do  nothing  farther  by  way  of 
carrying  out  the  sale ;  but  the  article  sold  may  not  be  all 
that  he  has  warranted  it  to  be,  in  which  case  he  may  be 
sued  by  the  vendee  for  breach  of  warranty.  When  the 
title  has  not  passed,  the  vendor  still  has  the  goods  and  is 
therefore  not  entitled  to  their  price ;  but  he  may  be  under 
a  binding  contract  to  sell  and  deliver  the  goods,  at  some 
time  in  the  future,  to  a  vendee  who  has  agreed  to  accept 
and  pay  for  them.  A  breach  of  such  a  contract  by  the 
vendor  would  consist  in  his  failure  to  deliver  in  accord- 
ance with  the  terms  of  the  contract;  the  vendee's  breach, 
on  the  other  hand,  will  consist  in  a  failure  to  accept  and 
pay  for  them.  Each  of  these  breaches  presents  its  own 
problem. 

§  81.  Completed  sale:  Breach  by  vendee.  The  ven- 
dee's failure  to  pay  the  agreed  price  is  an  obvious  instance 
of  non-payment  of  money  and  the  measure  of  damages  is 
simple ;  the  vendor  will  recover  the  amount  due,  together 
with  interest  during  the  delay.  Frequently  the  purchaser 
leaves  the  goods  in  the  hands  of  the  seller  after  the  title 
has  passed.  This,  however,  does  not  alter  the  measure 
of  damages.  But,  in  such  a  case,  the  vendor  is  allowed 
to  dispose  of  the  goods  at  the  best  price  obtainable,  and 
apply  the  proceeds  upon  the  amount  due  him  (1). 

§  82.  Same:  Breach  of  vendor's  warranty.  An  arti- 
cle fails  to  correspond  with  the  seller's  warranty.  How 
much  should  the  purchaser  recover?    An  actual  case  sup- 


(1)     Sawyer  v.  Dean,  114  N.  Y.  469. 


186  DAMAGES 

plies  the  answer  ( 2 ) .   Plaintiff  paid  $90  for  a  horse,  wMch 
was  warranted  to  be  sound  but  wliich  actually  had  a 
disease  of  the  eyes.     The  trial  court  charged  that  the 
plaintiff  was  entitled  to  the  difference  between  the  price 
paid  and  the  value  of  the  horse  with  the  defect.    This  was 
held  to  be  error.    Said  the  higher  court:    ''A  warranty 
on  the  sale  of  a  chattel  is,  in  legal  effect,  a  promise  that 
the  subject  of  the  sale  corresponds  with  the  warranty  in 
title,  soundness,  or  other  quality  to  which  it  relates.    It 
naturally  follows  that,  if  the   subject  prove  defective 
within  the  meaning  of  the  warranty,  the  stipulation  can  be 
satisfied  in  no  other  way  than  by  making  it  good.    That 
cannot  be  done  except  by  paying  to  the  vendee  such  sum 
as,  together  with  the  cash  value  of  the  defective  article, 
shall  amount  to  what  it  would  have  been  worth  if  the  de- 
fect had  not  existed."    But  this  difference  does  not  in  all 
cases  mark  the  limit  of  recovery.    Here,  as  elsewhere,  the 
rule  of  Hadley  v.  Baxendale  (§51)  applies,  and  the  vendee 
may   recover   for   such   consequential   damages   as    the 
parties  may  fairly  be  deemed  to  have  contemplated.  Thus, 
where  a  cow  was  sold  with  a  warranty  that  she  was  free 
from  a  certain  infectious  disease,  and  the  seller  knew  that 
the  buyer  would  place  her  with  other  cattle,  and  it  ap- 
peared that  she  was  at  the  time  of  the  sale  affected  with 
the  disease,  it  was  held  that  the  seller  was  liable  upon  his 
warranty  for  the  loss  of  other  cattle  as  a  consequence  of 
contracting  the  disease  from  the  warranted  cow  (3). 
§  83.    Contract  to  sell:    Breach  by  vendee.    When  the 


(2)  Cary  v,  Grumau,  4  Hill,  025. 

(3)  Smith  V.  Green,  1  C.  P.  D.  92. 


SPECIAL  RULES  187 

title  has  not  passed,  and  the  buyer's  breach  consists  in  a 
total  failure  to  carry  out  the  bargain,  the  seller  is  left 
with  full  title  to  the  goods  but  has  clearly  lost  whatever 
value  the  bargain  had  (4).  Accordingly  he  recovers 
nominal  damages,  unless  the  actual  value  of  the  goods 
at  the  time  and  place  of  delivery  is  less  than  the  contract 
price,  in  which  case  he  recovers  the  difference  as  a  fair 
measure  of  the  advantage  which  he  has  lost.  Thus,  where 
a  contract  was  made  in  New  York  for  the  delivery  of  glass 
in  Antwerp,  and  the  buyer  refused  to  accept  delivery,  it 
was  held  error  to  instruct  the  jury  that  the  measure  of 
damages  was  the  difference  between  the  contract  price 
and  the  market  price  in  the  city  of  New  York,  the  higher 
court  holding  that  the  market  price  at  Antwerp  should 
govern  (5). 

§  84.  Same:  Breach  by  vendor.  For  the  vendor's 
failure  to  deliver  goods,  in  accordance  with  his  contract, 
the  vendee's  measure  of  damages  is  the  converse  of  the 
vendor's  in  the  ease  where  the  vendee  fails  to  accept;  in 
other  words,  upon  the  vendor 's  non-delivery  at  the  stipu- 
lated time,  the  vendee's  damages  are  nominal,  unless  he 
can  show  that  the  value  of  the  goods,  at  the  time  and  place 
of  delivery,  exceeds  the  contract  price,  in  which  case 
he  may  recover  the  difference  as  representing  the  value 
of  the  bargain  that  he  has  lost.  Thus,  where  defendant 
had  agreed  to  deliver  to  plaintiff  a  quantity  of  iron  in 
equal  instalments  in  September,  October,  and  November, 
but  failed  to  deliver  any  part  of  it,  the  court  held  that  the 


(4)  For  vendor's  option  to  treat  sale  as  complete  upon  tender,  in 
some  cases,  see  Sales,  §§  lOS-9,  in  Volume  III. 

(5)  Cohen  v.  Piatt,  G9  N.  Y.  348. 


188  DAMAGES 

measure  of  damages  was  the  sum  of  the  differences  be- 
tween the  contract  and  market  prices  of  one-third  of  the 
total  amount,  upon  the  last  day  of  each  of  the  months 
specified  (6) .  But  here,  too,  it  should  be  remembered  that 
the  rule  of  Pladley  v.  Baxendale  may  be  relied  upon  to 
give  the  purchaser  special  damages  for  the  consequences 
of  non-delivery,  when  a  special  use  was  contemplated  by 
both  parties  (7). 

Section  2.    Contracts  Relating  to  Eealty. 

§  85.  Contracts  of  sale:  Breach  by  vendee.  A  contract 
for  the  sale  of  land  looks  to  a  future  conveyance  of  title 
by  the  vendor,  and  to  an  acceptance  of  that  conveyance 
by  the  vendee.  If  the  vendee  receives  the  title,  his  ob- 
ligation to  pay  the  agreed  price  is  obvious  and  presents 
no  special  problem.  If  he  refuses  to  accept  the  convey- 
ance, it  is  clear  that  he  has  broken  his  contract  and  that 
he  must  pay  the  vendor  an  adequate  compensation  for 
the  loss  of  his  bargain,  but  it  is  equally  clear  that  he 
ought  not  to  pay  the  contract  price  for  the  land ;  to  compel 
him  to  do  that  would  leave  the  vendor  with  his  land  and 
its  purchase  price  too.  Accordingly,  the  same  rule  is  ap- 
plied as  in  the  case  of  personalty;  the  vendor  recovers 
nominal  damages  only,  unless  he  can  show  that  the  value 
of  the  land  at  the  time  for  executing  the  conveyance  was 
less  than  the  agreed  price,  in  which  case  he  is  entitled  to 
the  difference  (8). 

§  86.    Same:    Breach  by  vendor.    Upon  the  principles 


(0)     Brown  v.  Mullor,  L.  R.  7  Ex.  319. 

(7)  Booth  V.  Spuyten  Duyvil  Rolling  Mill  Co.,  00  N.  Y.  487. 

(8)  Old  Colony  R.  R.  Corporation  v.  Evans,  6  Gray,  25. 


SPECIAL  EULES  ISd 

generally  applicable  to  actions  on  contracts,  it  is  plain 
that,  where  the  vendor  refuses  to  execute  a  conveyance, 
the  vendee  should  recover  the  value  of  his  bargain.  We 
saw  that  where  a  vendor  breaks  his  contract  to  deliver 
goods,  the  damages  ordinarily  recoverable  by  the  vendee 
are  nominal,  unless  he  can  show  that  the  value  of  the 
goods  at  the  time  for  delivery  exceeded  the  contract  price, 
in  which  case  he  may  recover  the  difference.  Some 
American  courts  apply  a  similar  rule  when  the  action 
is  against  the  vendor  for  nonperformance  of  a  contract 
to  convey  land  (9).  On  principle,  it  seems  hard  to  dis- 
tinguish between  sales  of  realty  and  personalty  in  this 
respect ;  but  the  settled  English  rule  is  to  limit  the  ven- 
dee's  recovery  to  nominal  damages  and  any  part  of  the 
purchase  price  which  he  may  have  paid,  in  any  case  in 
which  the  vendor,  whose  conduct  has  beein  free  from 
fraud,  is  unable  to  make  a  good  title  (10).  And  this  rule 
has  been  frequently  acted  upon  in  this  country.  Thus 
where  defendant,  the  widowed  mother  of  six  children, 
agreed  to  sell  for  $800  land  belonging  to  the  children, 
which  was  worth  $2000  and  which  she  supposed  she  could 
obtain  authority  to  convey,  it  was  held  error  to  award 
damages  in  the  sum  of  $1200  for  her  refusal  to  con- 
vey, upon  her  failure  to  obtain  the  requisite  court  au- 
thority (11).  The  court  said  that  the  recovery  should 
have  been  confined  to  the  purchase-money  paid  ($25)  and 
interest  thereon.  The  general  rule,  and  the  exceptions 
recognized  in  this  country  where  the  rule  itself  prevails, 

(9)  Hopkins  v.  Lee,  6  Wheat.  109. 

(10)  Flureau  v.  Thornhill,  2  W.  Bl.  1078. 

(11)  Margraf  v.  Muir,  57  N.  Y.  155. 


190  DAMAGES 

are  well  expressed  in  the  following  extract  from  the 
opinion : 

' '  The  referee  allowed  the  plaintiff  as  damages  the  dif- 
ference between  the  contract-price  and  the  value  of  the 
land,  thus  placing  him  in  the  position  he  would  have  been 
if  the  contract  had  been  performed.  In  this  I  think  he 
erred.  The  general  rule  in  this  state,  in  the  case  of  ex- 
ecutory contracts  for  the  sale  of  land,  is  that,  in  case  of 
breach  by  the  vendor,  the  vendee  can  recover  only  nominal 
damages,  unless  he  has  paid  part  of  the  purchase  money, 
in  which  case  he  can  also  recover  such  purchase  money 
and  interest.  But  to  this  rule  there  are  some  exceptions 
based  upon  the  wrongful  conduct  of  the  vendor,  as  if  he 
is  guilty  of  fraud,  or  can  convey  but  will  not,  either  from 
perverseness  or  to  secure  a  better  bargain,  or  if  he  has 
covenanted  to  convey  when  he  kn-ew  he  had  no  authority 
to  convey;  or  where  it  is  in  his  power  to  remedy  a  defect 
in  his  title  and  he  refuses  or  neglects  to  do  so,  or  when 
he  refuses  to  incur  such  reasonable  expenses  as  would 
enable  him  to  fulfill  his  contrac-t.  In  all  such  cases,  the 
vendor  is  liable  to  the  vendee  for  the  loss  of  the  bargain, 
under  rules  analogous  to  those  applied  in  the  sale  of 
personal  property.  Here  no  fraud  was  perpetrated  on 
the  vendee." 

§  87.  Breach  of  covenant  of  seisin.  A  contract  to  con- 
vey  is  performed  by  executing  a  conveyance.  The  deed 
of  conveyance  usually  contains  covenants.  These  cove- 
nants are  in  the  nature  of  contractual  undertakings,  but 
those  usually  contained  in  deeds  differ  radically  from  or- 
dinary contracts  with  respect  to  the  measure  of  damages 


SPECIAL  EULES  191 

for  their  breach.  For  reasons  partly  historical  and  partly 
founded  upon  considerations  of  policy,  the  amount  of  the 
purchase  money  paid,  and  not  the  value  of  the  bargain, 
is  the  measure  of  damages  generally  adopted  in  actions 
brought  upon  such  covenants.  The  rule  applicable  to  the 
familiar  covenant  of  seisin,  and  to  its  substantial  equiva- 
lent, the  covenant  of  right  to  convey,  is  an  example.  If, 
at  the  time  of  conveyance,  the  grantor  has  a  good  title 
to  all  he  attempts  to  convey,  neither  of  these  covenants 
can  ever  be  broken ;  if,  on  the  other  hand,  there  is  at  that 
time  a  want  of  title  to  the  whole  or  to  a  part  of  the  land 
which  his  deed  purports  to  convey,  there  is  a  breach  at 
the  moment  of  conveyance.  When  the  title  fails  as  to 
the  whole,  the  purchaser  recovers  the  consideration  paid 
with  interest;  when  there  is  a  failure  as  to  a  part  only, 
he  recovers  a  ratable  proportion  of  the  purchase  money 
and  interest  thereon  (12). 

§  88.  Breach  of  covenants  of  warranty  and  quiet  en- 
joyment. The  covenants  of  warranty  and  quiet  enjojanent 
are  similar  in  effect  and  subject  to  the  same  rule  of 
damages.  Neither  is  broken  until  there  is  an  eviction 
by  the  grantor  (or,  in  case  of  a  lease,  by  the  lessor),  or 
by  a  third  person  under  lawful  claim  of  title  (13).  When 
such  a  breach  occurs,  the  covenantee  recovers,  not  the 
value  of  the  property  at  the  time  of  the  eviction,  but  the 
amount  of  the  purchase  money  paid,  or,  in  case  of  partial 
eviction,  a  ratable  proportion  thereof  (14).    Interest  is 


(12)  Staats  v.  Ten  Eyck's  Ex'rs,  3  Caines,  111. 

(13)  Tiffany,  Eeal  Property,  sect.  398. 

(14)  Rawle,  Covenants  for  Title,  sect.  164.    Contra :  Cecconi  v.  Rod- 
den,  147  Mass.  64. 


192  DAMAGES 

also  recoverable.  And,  where  eviction  is  tlie  result  of  an 
action  at  law,  of  wliich  the  covenantee  has  given  the  cove- 
nantor notice,  the  covenantee  recovers  his  expenses  in 
such  action.  From  this  statement  of  the  rule,  it  will  be 
correctly  inferred  that  no  allowance  is  made  to  the  grantee 
for  appreciation  in  value  or  improvements  made  by  him, 
after  the  conveyance  but  before  eviction  (15).  If  the  ap- 
preciation has  been  great,  as  where  land  bought  for  agri- 
cultural purposes  has  become  valuable  for  city  lots,  or  if 
the  improvements  have  been  exioensive,  as  where  large 
office  buildings  have  been  erected,  this  rule  may  bear 
with  great  hardship  upon  the  grantee.  But  it  will  be 
seen  that  here  is  an  unavoidable  choice  of  evils.  To  allow 
the  value  at  the  time  of  eviction  would  bear  with  equal 
hardship  upon  the  grantor. 

§  89.  Breach  of  covenant  against  encumbrances.  The 
covenant  against  encumbrances,  like  the  covenant  of 
seisin,  is  broken  at  the  time  of  conveyance,  if  ever.  Where 
the  encumbrance  is  of  such  a  nature  that  an  eviction  can- 
not be  prevented  by  the  covenantee,  the  measure  of 
damages  will  be  based  upon  the  consideration  paid,  as  in 
the  case  of  eviction  under  a  covenant  of  seisin  or  of  quiet 
enjoyment  (16) ;  but,  where  no  eviction  occurs,  recovery 
will  be  based  upon  the  principle  of  indemnity,  subject 
to  the  limitation  that  it  cannot  exceed  the  consideration 
paid.  Thus,  where  land  conveyed  with  a  covenant  against 
encumbrances  was  burdened  with  a  permanent  right  of 
way,  which  actually  reduced  its  value  $750,  the  covenantee 


(15)  Pitcher  v.  Livingstou,  4  Johns.  1. 

(16)  Stewart  v.  Drake,  9  N.  J.  L.  139. 


SPECIAL  RULES  193 

recovered  that  amount  (17).  "Where  the  encumbrance  is 
a  mortgage,  which  secures  an  amount  less  than  the  price 
paid  for  the  land,  the  covenantee  may  pay  the  mortgage 
and  recover  the  amount  paid  from  the  covenantor;  but 
where  he  has  done  nothing  toward  removing  it  he  can 
recover  nothing  (18).  When  the  incumbrance  involves 
a  permanent  impairment  of  value,  which  cannot  be  con- 
trolled by  the  purchaser,  as  in  the  case  of  the  right  of 
way,  the  right  to  indemnity  is  fixed;  but  where  the  en- 
cumbrance may  be  removed  by  a  reasonable  effort  on  the 
part  of  the  purchaser,  as  in  the  case  of  a  mortgage  for 
less  than  the  amount  wliich  he  paid  for  the  land,  the  en- 
cumbrance is  not  regarded  as  permanent  and  he  recovers 
the  cost  of  removing  it  only  in  case  he  actually  incurs  the 
expense  of  removal. 

§  90.  Effect  of  recital  of  consideration  in  deed.  Since 
the  purchase  price  is  so  often  the  measure  of  damages, 
in  actions  upon  covenants  in  deeds,  it  becomes  important 
to  inquire  whether  the  consideration  may  be  shown  to 
have  been  other  than  that  recited  in  the  deed.  Of  course 
the  recital  is  prima  facie  evidence  of  the  amount  paid- 
in  the  absence  of  evidence  to  the  contrary  it  controls.  But, 
as  between  the  immediate  parties,  the  consideration  clause 
is  open  to  explanation  by  extraneous  evidence.  Thus, 
where  the  consideration  recited  in  the  deed  was  $1,800, 
the  plaintiff  was  allowed  to  enhance  his  damages  by  show- 
ing that  the  actual  consideration  was  $2,800  (19) ;  on  the 


(17)  Mitchell  v.  Stanley,  44  Conn.  312. 

(18)  Tufts  V.  Adams,  8  Pick.  547. 

(19)  Belden  v.  Seymour,  8  Conn.  304. 


194  DAMAGES 

other  hand,  where  the  consideration  as  recited  was  $900, 
the  defendant  was  allowed  to  reduce  the  damages  by 
showing  that  it  was  in  fact  only  $100  (20).  Naturally,  a 
different  rule  prevails,  when  an  action  is  brought  by  a 
remote  grantee  upon  a  covenant  running  with  the  land. 
He  knows  nothing  of  the  transaction  between  the  original 
parties  except  as  it  is  expressed  in  the  deed.  Hence,  it 
has  been  held  that,  in  an  action  against  the  grantor  by  a 
remote  grantee,  the  former  could  not  reduce  his  damages 
by  showing  that  the  consideration  actually  received  by 
him  was  less  than  the  amount  recited  in  his  deed  (21). 

Section  3.  Certain  Miscelj:.aneous  Conteacts. 
§  91.  Contract  to  loan  money.  We  have  already  seen 
that  a  contract  to  pay  money  takes  a  special  rule.  Al- 
though the  person  to  whom  money  is  due  may  sustain 
very  substantial  consequential  damages  as  a  result  of 
its  non-payment,  he  is  nevertheless  confined,  by  the  rule  of 
certainty,  to  a  recovery  of  interest  during  the  period  of 
delay  as  his  sole  compensation  for  the  inconvenience 
caused  (22).  He  gets  interest,  because  he  has  clearly  lost 
the  use  of  the  money,  and  men  ordinarily  estimate  the 
value  of  money's  use  in  terms  of  interest.  This  principle 
has  a  singular  result,  when  applied  to  a  contract  to  loan 
money  at  some  time  in  the  future.  When  one  who  has 
agreed  to  loan  money  fails  to  provide  it  at  the  agreed 
time,  it  is  plain  that  the  would-be  borrower  will  be  de- 
prived of  its  use.    Accordingly  it  would  seem  that  in  such 


(20)  Morse  v.  Shattuck,  4  N.  H.  229. 

(21)  Greenvault  v.  Davis.  4  Hill,  043. 

(22)  Greene  v.  Goddard,  9  Met.  212. 


SPECIAL  EXILES  195 

a  case  he  should  recover  the  interest,  as  representing  the 
value  of  the  use ;  but,  as  he  would  have  to  pay  the  money- 
lender interest  in  case  he  obtained  the  money,  it  is  plain 
that  by  not  obtaining  the  loan  he  saves  as  much  as  the 
law  will  admit  that  he  has  lost.  Accordingly,  in  the  or- 
dinary case  of  refusal  to  loan  in  accordance  with  a  con- 
tract, only  nominal  damages  are  recoverable  (23). 

§  92.  (Contract  to  pay  another's  debt.  A  not  uncom- 
mon type  of  contract  is  that  in  which  one  party  agrees  to 
pay  a  debt  which  the  other  party  owes  to  a  third  person. 
If  he  does  not  pay  as  agreed,  he  obviously  breaks  his  con- 
tract, and  is  therefore  liable  to  the  other  contracting 
party  (24).  If  the  plaintiff  in  such  an  action  has  been 
compelled  to  pay  the  debt  himself,  it  is  plain  that  he  has 
sustained  actual  damage  to  the  extent  of  the  amount  paid. 
But  suppose  he  has  not  paid  when  his  action  is  brought; 
it  is  plain  that  he  may  never  pay,  and  consequently  may 
never  sustain  actual  damage  from  the  breach,  in  the 
sense  of  actual  pecuniary  loss.  Nevertheless  he  is  al- 
lowed to  recover  the  full  sum,  on  the  theory  that  such  was 
the  intention  of  the  parties  (25). 

§  93.  Contracts  of  indemnity  and  insurance.  The  last 
subsection  deals  with  a  case  in  which  one  person  has  prac- 
tically agreed  to  step  into  another's  shoes  as  debtor.  It 
should  be  distingTiished  from  a  contract  of  indemnity. 
One  person  may  agree  to  reimburse  another,  in  case  the 
other  is  compelled  to  pay  a  sum  of  money  in  discharge 


(23)  Goodeu  v.  Moses,  99  Ala.  230. 

(24)  As  to  the  third  person's  right,  see  tlie  article  ou  Contracts, 
§§  92-100,  in  Volume  I. 

(25)  Furnas  v.  Durgiu,  119  Mass.  500. 


196  DAMAGES 

of  a  liability.  Or  the  law  may  treat  him  as  though  he 
had  made  such  an  agreement,  as  in  the  case  of  principal 
and  surety.  When  the  surety  is  compelled  to  pay,  he  is 
entitled  to  be  fully  indemnified  by  his  principal.  Accord- 
ingly, where  he  is  compelled  to  pay  by  suit,  which  he  has 
notified  the  principal  to  defend,  he  may  recover  his  neces- 
sary costs  (26).  In  the  case  of  indemnity,  actual  loss  is 
the  test.  Contracts  of  insurance  against  loss  of  property 
by  fire  or  other  casualty  are  essentially  contracts  of  In- 
demnity. Until  the  loss  occurs  nothing  is  due;  when  it 
does  occur,  the  contract  requires  that  the  insurer  must 
pay  whatever  loss  is  sustained,  up  to  the  amount  for  which 
insurance  is  carried  (27).  Of  course  the  policy  or  in- 
surance contract  may  expressly  provide  for  the  insurance 
of  a  limited  interest,  in  which  case  the  value  of  the  in- 
terest will  necessarily  limit  the  recovery.  However,  the 
law  permits  one  who  is  in  possession  of  property  to  in- 
sure it  for  its  full  value,  although  his  interest  may  be 
limited,  and  in  the  event  of  its  loss  or  destruction,  to  re- 
cover the  full  value  (28).  It  will  be  seen  that  this  is  a 
clear  departure  from  the  principle  of  indemnity.  But  it 
should  not  be  supposed  that  the  owner  of  a  limited  in- 
terest may  permanently  hold  as  his  own  the  full  amount 
thus  recovered.  He  will,  as  a  general  rule,  subject  to  ex- 
ceptions concerning  which  the  courts  are  not  agreed,  hold 
the  amount  recovered,  beyond  indemnity  for  his  indi- 
vidual loss,  as  a  trustee  for  the  owners  of  the  other  in- 


(2G)     Baker  v.  Martin,  3  Barb.  634. 

(27)  Underbill  v.  Agawam  M.  F.  I.  Co.,  0  Cusb.  440. 

(28)  De  Forest  v.  Fulton  F.  I.  Co.,  1  Hall,  84. 


SPECIAL  RULES  197 

terests  (29).  Different  principles  apply  to  life  insurance 
contracts.  The  object  of  life  insurance  is  not  to  indemnify 
the  insured  against  a  loss  of  property,  but  to  provide 
for  the  payment  of  an  agreed  sum  to  the  beneficiary  upon 
the  death  of  the  insured.  Upon  the  happening  of  that 
event  the  policy  ripens  into  an  obligation  to  pay  a  fixed 
sum  of  money,  and  is  therefore  subject  to  the  ordinary 
measure  of  damages  for  the  non-payment  of  money  (30). 

§94.  Contract  to  marry.  The  so-called  **  breach  of 
promise ' '  suits  occupy  an  anomolous  position.  A  promise 
to  marry  does  not  differ  in  its  nature  from  any  other  con- 
tractual promise.  An  action  for  its  breach  is  essentially 
an  action  for  breach  of  contract.  Nevertheless  such  an 
action  is,  for  the  purpose  of  estimating  damages,  treated 
very  much  as  an  action  of  tort.  As  in  the  case  of  non- 
pecuniary  actions  of  tort,  the  damages  rest  in  the  sound 
discretion  of  the  jury.  In  estimating  the  damages,  the 
jury  may  consider  the  temporal  loss  to  the  woman  whose 
expectations  have  been  disappointed;  the  mental  suffer- 
ing occasioned  by  the  injury  to  her  affections;  and  the 
humiliation  and  distress  resulting  from  the  defendant's 
refusal  to  carry  out  his  promise  (31).  Exemplary 
damages  are  also  recoverable ;  in  aggravation  the  plaintiff 
may  show  that  the  defendant  has  falsely  accused  her  of 
misconduct  with  other  men  (32),  that  she  has  been  seduced 
under  promise  of  marriage,  or  that  such  seduction  has 


(29)  See  the  article  on  Insurauce,  §§  145-48,  In  Volume  VII. 

(30)  Trenton  M.  L.  &  F.  I.  Co.  v.  Johnson,  24  N.  J.  L.  57G. 

(31)  Coolidge  v.  Neat,  129  Mass,  146. 

(32)  Berry  v.  Da  Costa,  L.  R.  1  C.  P.  331. 


198  DAMAGES 

been  followed  by  tlie  birth  of  a  child  (33).  In  mitigation, 
the  defendant  may  show  that  the  plaintiff  was  addicted 
to  lewdness  or  profanity,  or  that  she  did  not  really  care 
for  him,  but  sought  to  obtain  his  money,  or  to  spite  his 
family  (34). 

Section  4.     Tortious  Severance  from  the  Realty. 

§  95.  In  general.  A  wrongfully  enters  B  's  mine,  breaks 
coal  from  its  place  in  the  vein,  takes  it  to  the  mouth  of  the 
pit,  and  then  transports  it  to  market,  where  he  sells  it 
to  C.  Since  the  coal  is  B  's  property  he  may  recover  it  in 
specie  wherever  he  can  find  and  identify  it ;  but  he  may 
prefer  to  bring  an  action  for  damages,  and,  if  the  coal 
is  not  recoverable  in  specie,  an  action  for  damages  will 
be  his  only  available  remedy.  The  facts  stated  give  B 
a  choice  of  actions  against  A,  according  as  he  relies  upon 
the  wrongful  entry  upon  his  land,  or  upon  the  taking  or 
conversion  of  his  personal  property,  as  the  gist  of  the 
action.  The  result  is  peculiar:  A's  labor  has  added 
value  to  the  coal;  B's  actual  damage  is  the  same,  what- 
ever form  of  action  he  adopts;  the  actions  open  to  B's 
choice  differ  from  each  other  in  the  rules  of  damages  to 
which  they  are  respectively  subject.  Shall  the  form  of 
action  determine  the  rule  of  damages;  or  shall  the  sub- 
stance govern;  and,  if  the  substance  governs,  shall  A  or 
B  have  the  value  of  B's  work?  Different  courts  have 
made  different  answers. 

§  96.  When  action  is  for  trespass  on  land.  When  the 
gist  of  the  action  is  the  wrongful  entry  upon  the  land, 


(.^3)     Sherman  v.  Rawson.  102  Mass.  395. 
(34)     Miller  v.  Rosier,  31  Mich.  475. 


SPECIAL  EULES  199 

the  taking  and  carrying  away  of  the  coal  is  regarded 
merely  as  aggravation  of  damages.  In  strictness  the 
plaintiff  recovers  for  the  disturbance  of  his  possession. 
He  recovers  for  whatever  damage  is  done  to  his  land. 
If  coal  is  taken,  he  should  have  the  diminished  value  of 
his  land.  This  would  naturally  include  the  value  of  the 
coal  in  place,  and  any  consequential  damage  to  the  land 
occasioned  by  the  process  of  removal,  as,  for  instance, 
subsidence  of  the  soil.  So,  if  trees  are  taken,  the 
diminished  value  of  the  land  is  the  criterion.  If  they 
are  shade  trees,  the  damage  would  by  no  means  be  rep- 
resented by  the  value  of  the  trees  as  timber,  any  more 
than  damage  for  the  removal  of  a  growing  crop  would  be 
measured  by  the  forage  value  of  the  crop,  after  severance. 
When  this  form  of  action  is  chosen,  the  damage  to  the 
land,  regardless  of  the  subsequent  history  of  the  prop- 
erty severed,  would  seem  the  sound  as  well  as  the  strict 
rule  of  damages  (35) .  All  courts  would  allow  the  plaintiff 
to  recover  at  least  that  much;  but  some  would  not  stop 
there. 

§  97.  When  action  is  for  trespass  to  personal  property. 
However,  the  plaintiff  may  claim  no  damages  for  the 
injury  to  his  soil.  He  may  waive  the  trespass  upon  the 
land,  and  claim  compensation  for  the  taking  and  carry- 
ing away  of  his  goods  and  chattels.  In  strictness,  the 
coal  is  a  part  of  the  land  until  it  is  severed.  At  the  com- 
pletion of  the  work  of  severance,  it  has  for  the  first  time 
become  a  chattel.  The  chattel  still  belongs  to  the  owner 
of  the  soil.    He  now  claims  damages  for  its  taking  as  a 


(35)     Foote  V.  Merrill,  54  N.  H.  490. 

Vel.  X— 15 


200  DAMAGES 

chattel.  In  strictness,  its  value  at  the  moment  of  com- 
plete severance  is  the  proper  measure  of  damages  in  this 
form  of  action  (36).  And  yet  the  courts  are  not  agreed 
as  to  wlien  the  value  should  be  estimated. 

^  §  ^8.  ^  When  action  is  for  conversion  of  personal  prop- 
erty. When  the  action  is  for  the  conversion  of  the  coal 
as  a  chattel,  it  is  obvious  that  no  recovery  may  be  had 
for  consequential  damage  to  the  land  as  such,  but  a  ques- 
tion will  remain  as  to  when  the  value  of  the  coal  should 
be  estimated.  Here,  as  in  the  case  of  trespass  to  per- 
sonalty, it  is  evident  that  in  strictness  the  plaintiff  should 
at  least  recover  the  value  of  the  coal  when  it  first  became 
a  chattel.  On  the  other  hand,  a  peculiarity  of  the  tort  of 
conversion  is  that  there  may  be  successive  conversions  of 
the  same  chattel  by  the  same  person.  If,  for  instance, 
after  A  has  taken  B  's  coal  and  transported  it  to  market, 
B  there  demands  it  from  A  and  A  refuses  to  deliver  it, 
there  is  perhaps  a  new  conversion.  In  strictness,  it  seems 
difiScult  to  deny  B  's  right  to  recover  the  full  value  at  the 
time  and  place  of  the  new  conversion,  if  he  makes  that 
conversion  the  gist  of  an  action  of  trover  (37).  On  the 
other  hand,  if  there  is  no  evidence  of  a  new  conversion, 
the  value  of  the  coal  at  the  time  of  the  conversion,  which 
was  the  instant  it  became  a  chattel,  seems,  on  technical 
grounds,  the  true  measure  of  damages  in  this  form  of 
action,  as  well  as  when  the  action  is  for  trespass  to  per- 
sonalty (38).    But  here  too  the  courts  differ  widely 


(3G)     dishing  v.  Longfellow,  2G  Me.  300. 

(37)  Moody  v.  Whitney,  38  Me.  177. 

(38)  White  V.  Yawkey,  108  Ala.  270. 


SPECIAL  EULES  201 

§  99.    Prevailing  tendency  to  disregard  forms.  It  seems 
that  where  the  plaintiff  wishes  compensation  for  the 
damage  to  his  land  as  such,  he  must  make  the  wrongful 
entry  the  basis  of  his  action ;  but,  when  he  seeks  compen- 
sation for  the  loss  of  his  chattels,  whether  they  be  min- 
erals or  timber,  he  will  find  most  courts  disposed  to  dis- 
regard the  limitations  imposed  by  the  mere  form  of  action 
and  to  award  damages  upon  broad  principles  of  justice. 
The  wrong-doer's  motive  is  made  an  important  factor. 
If  he  has  acted  under  an  innocent  mistake  of  fact,  the 
tendency  is  to  give  to  him  whatever  value  his  own  labor 
may  have  added  to  the  property  taken ;  to  require  him,  in 
ordinary  cases,  to  pay  the  value  of  the  coal  in  place,  or 
of  the  timber  as  it  stood,  before  his  legally  wrongful,  but 
morally  innocent,  act  in  severing  it  from  the  realty.  Thus 
in  a  leading  case  (39),  where  the  defendant  innocently 
went  beyond  his  line  in  mining  coal,  and  mined  and  car- 
ried away  some  of  plaintiff's  coal,  it  was  held,  in  an  action 
of  trover,  that  the  true  measure  of  damages  was  the  value 
of  the  coal  in  place  and  not  as  it  lay  in  the  pit  after 
severance.    After  conceding  that,  if  the  form  of  action 
were  to  control,  the  value  after   severance  should  be 
adopted,  the  court  rejected  this  criterion  and  said:    "We 
prefer  the  rule  in  Wood  v.  Moorehead  (40),  where  Parke, 
B.,  decided,  in  a  case  of  trover  for  taking  coals,  that  if 
the  defendant  acted  fairly  and  honestly,  in  the  full  be- 
lief of  his  right,  then  the  measure  of  damages  is  the  fair 
value  of  the  coals,  as  if  the  coal-field  had  been  purchased 
from  the  plaintiffs."    This  case  illustrates  a  strong  ten- 

(39)  Forsyth  v.  Wells,  41  Pa.  291. 

(40)  3  Q.  B.  440,  n. 


202  DAMAGES 

dency  of  the  decisions;  but  it  must  be  confessed  that 
there  is  great  divergence  of  authority.  Even  where  the 
courts  agree  that  substance  and  not  form  should  control 
the  measure  of  damages,  they  are  not  always  agreed  as  to 
what  substantial  compensation  involves.  It  need  not  be 
said  that  the  same  principles  apply  where  timber  has 
been  severed,  as  in  the  case  of  minerals.  Compare  the 
article  on  Personal  Property,  §§  23-28,  in  Volume  IV  of 
this  work. 

Section  5.  Death  by  Wrongful  Act. 
§  100.  In  general.  At  common  law  the  death  of  a 
human  being  put  an  end  to  all  right  of  recovery  for  per- 
sonal injury  sustained  by  him ;  in  other  words,  actions  for 
personal  injury  did  not  survive  the  death  of  the  injured. 
By  the  same  law,  death  itself  gives  no  right  of  action  to 
anyone ;  neither  his  personal  representatives  nor  his  im- 
mediate family  may  maintain  a  civil  action  therefor. 
Upon  these  doctrines  of  the  common  law,  legislation  has 
made  great  inroads.  Under  statutes  in  many  states,  ac- 
tions for  personal  injuries  survive  the  death  of  the  person 
injured.  Such  statutes  present  no  new  problem  in 
damages;  no  new  action  is  created,  the  old  one  simply 
survives;  compensation  is  allowed  the  estate  for  damage 
which  the  decedent  himself  sustained.  But  another  and 
larger  group  of  statutes  have  created  a  new  cause  of 
action ;  everywhere  in  this  country,  as  well  as  in  England, 
the  death  of  one  person,  as  a  proximate  consequence  of 
another's  wrongful  act,  gives  a  right  of  action  either  to 
the  personal  representatives  of  the  deceased  or  to  speci- 
fied members  of  his  family.    More  commonly  the  members 


SPECIAL  RULES  203 

of  the  immediate  family,  such  as  the  parents,  children, 
brothers,  and  sisters  are  the  beneficiaries ;  but  the  statutes 
vary  as  to  the  beneficiaries  designated.  Usually  a  definite 
sum,  as  $5000,  is  named  as  the  limit  of  recoveiy,  but  some- 
times no  limit  is  specified.  A\Tiere  the  amount  is  limited, 
those  entitled  must  share  in  proportion  to  the  losses  which 
they  have  respectively  suffered;  where  the  amount  is 
not  limited,  recovery  is  upon  the  basis  of  compensation 
for  loss  actually  sustained.  As  a  rule  recovery  is  limited 
by  these  statutes  to  losses  that  are  pecuniary.  The  special 
problem  of  damages  presented  is  to  ascertain  what  losses 
are  deemed  pecuniary,  within  the  meaning  of  these  acts. 

§  101.  Basis  of  recovery:  Pain  and  suffering  of  de- 
ceased. Under  a  statute  providing  for  the  survival  of 
actions  for  personal  injury,  it  is  obvious  that  damages 
ought  to  be  allowed  for  the  pain  and  suffering  of  the  de- 
ceased, upon  the  same  principles  that  would  have  gov- 
erned his  recovery  had  he  lived  to  maintain  the  action 
himself.  The  cause  of  action  remains  the  same;  such  a 
statute  merely  prevents  the  action  from  dying  with  the 
person.  But,  under  a  statute  which  gives  a  new  action 
for  pecuniary  loss  caused  the  family  of  deceased,  it  is 
equally  obvious  that  the  damage  caused  the  deceased  dur- 
ing his  lifetime  is  quite  immaterial  upon  the  question  of 
damages  (41).  And,  unless  the  statute  awards  exemplary 
damages,  which  is  usually  not  the  case,  it  is  equally  im- 
material whether  the  death  was  caused  wilfully  or  neg- 
ligently. 


(41)     Dwyer  v.  C,  St.  P.,  M.  &  O.  Ry.  Co..  84  Iowa,  479. 


204  DAMAGES 

§  102.  Same:  Grief  and  loss  of  society.  In  a  normal 
family  the  death  of  one  of  its  members  is  felt  least  of 
all  as  a  pecuniary  loss,  but  this  is  the  only  loss  which  the 
statute  attempts  to  compensate.  In  the  language  of  one 
of  the  decisions :  "It  must  be  borne  in  mind  that  the  re- 
covery allowable  is  in  no  sense  a  solatium  for  the  grief  of 
the  living,  occasioned  by  the  death  of  a  relative  or  friend, 
however  dear.  It  is  only  for  the  pecuniary  loss  resulting 
to  the  living  party  entitled  to  sue,  resulting  from  the 
death  of  the  deceased,  that  the  statute  aifords  compensa- 
tion. This  may  seem  cold  and  mercenary,  but  it  is  un- 
questionably the  law"  (42).  Upon  this  principle  it  was 
held  reversible  error  for  a  trial  court  to  admit  in  evidence 
a  photo gi-aph  of  the  deceased  (43). 

§  103.  Same:  Evidence  of  pecuniary  damage.  How- 
ever, it  must  not  be  supposed  that  the  pecuniary  loss  need 
be  shown  with  mathemiatical  exactness.  The  mere  pos- 
sibility of  pecuniary  loss  will  not  be  enough  to  gi'ound 
the  action,  but  a  probability  of  loss  is  enough.  Where 
the  deceased  had  accumulated  nothing  during  his  life- 
time, it  was  held  error  to  call  the  jury's  attention  to  the 
possibility  of  his  having  accumulated  property  which  the 
beneficiaries  might  have  inherited  (44) ;  but,  in  an  action 
brought  by  the  aged  and  infirm  father  of  the  deceased, 
the  fact  that  the  deceased  had  five  or  six  years  before  his 
death  given  the  plaintiff  money  when  the  latter  was  out  of 
work  was  held  sufficient  evidence  of  reasonable  pecuniary 


(42)  Pierce  v.  Conners,  20  Colo.  178. 

(43)  Smith  v.  T,ehifrli  Valley  R.  Co.,  177  N.  Y.  379. 

(44)  Wiest  V.  Electric  Traction  Co.,  200  Pa.  148. 


SPECIAL  RULES  205 

expectation  (45).  And,  it  has  been  held  by  a  court  whicH 
refuses  compensation  for  sorrow  and  mental  anguish 
caused  by  death,  that,  in  an  action  by  the  widow  for  the 
death  of  her  husband,  evidence  of  their  kindly  relations 
was  admissible  upon  the  question  of  pecuniary  loss  (46). 
As  to  the  admissibility  of  evidence  that  the  statutory 
beneficiaries  have  received  money  on  policies  of  insurance 
upon  the  life  of  the  deceased,  or  have  inherited  property 
from  the  deceased,  authorities  differ  (47). 

§104.  Same:  Excessive  verdicts.  From  an  actual  case 
of  a  typical  character,  something  may  be  learned  as  to 
the  measure  of  damages  in  this  class  of  cases.  The  de- 
fendant railroad  had  caused  the  death  of  plaintiff 's  father 
by  its  negligence.  The  court  instructed  the  jury  that 
their  recovery  must  be  limited  to  the  sum'  which  the 
father,  by  his  personal  exertions,  less  his  necessary  per- 
sonal expenses  and  those  of  his  wife  during  her  life, 
would  have  added  to  his  estate,  and  which  would  have 
descended  to  the  plaintiffs  as  his  heirs  at  law.  Upon  the 
trial  it  appeared  that  the  deceased  was  at  the  time  of  his 
death  about  68  years  of  age,  that  his  expectancy  of  life 
was  9I/2  years ;  that  he  was  then  earning  $2000  per  year 
as  a  bank  employe,  conveyancer,  and  notary;  that  his 
annual  expenses  were  about  $1000.  Under  these  instruc- 
tions and  upon  this  evidence,  the  jury  returned  a  verdict 
of  $4000  in  favor  of  plaintiffs.  Approving  the  instruc- 
tions and  conceding  that,  had  he  lived  the  full  term  of  his 
expectancy,  and  remained  able  during  all  that  time  to 


(45)  Hetherington  v.  Ry.  Co.,  9  Q.  B.  D.  160. 

(46)  Beeson  v.  Mining  Co.,  57  Cal.  20. 

(47)  S.  A.  &  A.  P.  Ry.  Co.  v.  Long,  87  Tex.  148. 


206  DAMAGES 

engage  in  tlie  work  in  which  he  was  employed  at  the  time 
of  his  death,  his  net  earnings  would  have  considerably  ex- 
ceeded the  amount  of  the  verdict,  the  court  held  that  the 
sum  awarded  was  nevertheless  excessive  (48).  Said  the 
court  in  part : 

**It  cannot  be  fairly  assumed,  however,  or  expected, 
that,  at  his  advanced  age,  he  would  have  continued  to  labor 
during  all  the  future  years  of  his  life.  In  considering  this 
question,  account  should  be  taken  of  his  liability  to  ill- 
ness, his  incapability  of  further  exertions  by  reason  of 
age,  and  that  he  might,  on  account  of  his  years,  conclude 
to  retire  from  active  work ;  that,  in  all  probability,  his  age 
would  soon  incapacitate  him  from  discharging  his  duties 
as  an  employe  in  the  bank  in  which  he  was  engaged ;  that, 
if  he  did  continue  to  earn  money  for  a  portion  of  his  ex- 
pectancy of  life,  he  would  at  least  expend  a  part  so  earned 
for  personal  use  during  the  remaining  years.  All  these 
are  contingencies  which  must  be  considered.  Necessarily, 
the  ascertaimnent  of  damages,  dependent  upon  a  variety 
of  circumstances  and  future  contingencies,  is  difficult  of 
exact  computation;  but,  nevertheless,  they  cannot  be  pre- 
sumed and  arbitrarily  given.  Undoubtedly  much  latitude 
must  be  given  a  jury  in  cases  of  this  character,  but  there 
must  be  some  basis  of  facts  upon  which  to  predicate  a 
finding  of  substantial  pecuniary  loss.** 

(48)     D.  &  R.  G.  R.  Co.  V.  Spencer,  27  Colo.  313. 


BANKRUPTCY 


BY 


FRANK  WILLIAM  HENICKSMAN, 

A.  B.,  A.  M.   (Indiana  University) 
J.  D.   (University  of  Chicago) 

Late  Lecturer  in  Law,  University  of  Chicago. 


BANKRUPTCY. 

§  1.  Outline.  The  purpose  of  the  article  on  bankruptcy 
is  to  give  a  brief  historical  sketch  of  the  origin  of  bank- 
ruptcy law,  its  development  in  England,  its  adoption, 
modification,  and  development  in  the  United  States,  with 
some  slight  attention  to  the  insolvency  laws  that  have 
been  adopted  by  the  various  states  of  the  Union.  Some 
attention  will  also  be  given,  in  passing,  to  the  various 
early  bankruptcy  acts  passed  by  Congress,  but  particular 
emphasis  will  be  placed  upon  the  most  recent  act,  passed 
by  Congress  in  1898,  as  amended  in  1903,  and  again  in 
1906.  To  deal  with  matters  of  court  procedure  in  that 
Act  would  be  of  benefit  only  to  a  practicing  attorney,  and 
this  feature  will  be  left  almost  entirely  untouched.    A 


208  BANKRUPTCY 

somewhat  detailed  examination,  however,  of  the  sub- 
stantive, as  distinguished  from  mere  procedural  aspects 
of  the  Act,  will  be  attempted.  Two  general  classes  of 
acts  known  as  acts  of  bankruptcy  will  require  attention. 
First,  the  law  of  fraudulent  conveyances  as  developed  at 
common  law  and  under  the  statute  of  Elizabeth,  and  how 
that  law  has  been  engrafted  upon  the  national  Act  to 
define  certain  acts  of  bankruptcy.  Second,  acts  of  bank- 
ruptcy that  had  no  existence  at  common  law,  but  were 
deemed  by  it  to  be  inoffensive.  These  are  the  result  of 
modern  legislation.  Other  substantive  features  of  the 
law  to  be  examined  are  the  following:  Who  may  be  a 
bankrupt,  who  may  be  petitioning  creditors,  the  duties  and 
powers  of  the  trustee,  what  property  passes  to  him,  what 
are  the  sources  of  his  title,  what  claims  are  provable,  and 
the  application  for,  opposition  to,  and  effect  of  a  dis- 
charge. In  conclusion  a  brief  statement  will  be  made  of 
some  of  the  advantages  of  a  national  bankruptcy  law  as 
contrasted  with  separate  laws  on  that  subject  in  the 
various  states. 


BANKRUPTCY  209 


CHAPTER  I. 
HISTORY  OF  BANKRUPTCY  LEGISLATION. 

§2.    Earliest  traces  of  elements  of  bankruptcy  law. 

Legal  historians  have  pointed  to  the  Jewish  law  of  biblical 
times,  which  commanded  creditors  to  release  their  debtors 
from  all  debts  at  the  end  of  every  seventh  year,  as  fur- 
nishing the  earliest  trace  of  one  of  the  essential  elements 
of  a  modem  code  of  bankruptcy.  The  Roman  law  of  the 
time  of  Julius  Caesar  permitted  a  debtor  to  make  what 
today  would  be  deemed  an  assignment  for  the  benefit  of 
his  creditors.  By  so  doing  he  became  entitled  to  a  release, 
not  as  modem  bankrupts  do,  from  the  unpaid  portion  of 
his  debts,  but  from  the  payment  of  the  severe  penalty  of 
capital  punishment,  imprisonment,  or  slavery.  The  as- 
signment and  partial  release  features  are  elements  of 
bankruptcy  law. 

§  3.  Increasing  complexity  of  business  demands  bank- 
ruptcy legislation.  In  the  early  times  just  mentioned, 
trading  was  limited.  The  chief  occupations  were  those  of 
farming  and  grazing.  Under  such  simple  social  condi- 
tions a  complete  bankruptcy  system  was  quite  unneces- 
sary. The  early  and  simple  forms  of  relief  to  creditors, 
who  were  usually  few  in  number,  were  adequate.  The 
people  who  first  made  bankruptcy  law  a  fixed  part  of  their 
code  were  the  English.    But  even  in  England  the  rural 


210  BANKRUPTCY 

life  and  simplicity  of  business  conditions  prevailed  to 
such  an  extent,  even  down  far  into  the  sixteenth  century, 
that  the  creditor  class  considered  the  remedy  of  execu- 
tion and  attachment  adequate.  Civilization  advanced, 
wants  increased,  and  manufacturers  no  longer  waited  for 
an  order  before  they  began  work  but  manufactured  in 
quantity  with  the  expectation  of  future  sale  in  season. 
Traders  bought  in  quantity  on  credit  in  advance ;  mer- 
chants did  not  confine  their  purchases  and  sales  to  a  few 
persons,  but  bought  from  and  sold  to  many  everywhere. 
When  failures  came,  and  the  diligent  creditor  with  his 
execution  ahead  of  others  took  all  the  debtor's  property  to 
satisfy  his  claim,  the  others  saw  the  injustice,  and  relief 
was  demanded. 

§  4.  Earliest  English  bankruptcy  law.  The  common 
law  was  inadequate  to  procure  an  equitable  adjust- 
ment of  the  rights  of  creditors,  where  equality  ap- 
pealed to  men's  reason.  It  was  under  such  conditions 
that  England  in  1542  passed  its  first  so-called  bankruptcy 
law.  Its  chief  features  deserve  mention.  Only  mer- 
chants and  traders  were  amenable  to  it,  and,  doubtless, 
others  were  not  clamoring  for  its  burdens,  for  it  was  a  law 
directed  against  fraudulent  debtors.  It  provided  for  the 
seizure  of  a  debtor's  property  and  its  pro  rata  distribu- 
tion among  his  creditors,  but  omitted  entirely  to  give  to 
him  a  release  of  any  kind,  even  from  imprisonment  for 
debt.  It  was  a  law  to  punish  fraudulent  debtors,  a  quasi- 
criminal  statute,  and  aimed  to  prevent  debtors  avoiding 
service  of  process  by  keeping  to  their  homes  or  departing 
from  the  realm. 


BANKRUPTCY  211 

§  5.  Progress  in  bankruptcy  legislation.  While  changes 
were  made  from  time  to  time  in  the  law  just  mentioned, 
they  were  not  marked,  and  it  was  not  until  1705,  over  160 
years  after  the  first  law  was  passed,  that  Parliament  saw 
fit  to  give  to  the  debtor  some  measure  of  attention,  the 
benefits  of  such  legislation  having  been  for  only  the  credi- 
tor theretofore.  In  that  year  a  law  was  passed,  known  as 
Queen  Anne's  act,  which,  containing  the  elements  of  the 
prior  law,  also  gave  the  debtor  a  release  from  the  portion 
of  his  debts  remaining  unpaid  after  the  distribution  of 
his  property.  The  delegates  assembled  in  the  Federal  con- 
stitutional convention  in  1787,  evidently  realizing  the  in- 
timate connection  with  and  the  importance  to  commerce 
of  a  system  of  bankruptcy  laws,  inserted  in  the  Constitu- 
tion a  provision  giving  Congress  power,  not  only  over 
commerce  in  general  between  the  states,  but  power  to 
make  uniform  laws  on  the  subject  of  bankruptcies 
throughout  the  United  States  (1).  This  was  the  earliest 
expression  on  the  subject  given  by  the  Union. 

§  6.  Bankruptcy  legislation  in  the  United  States.  Such 
was  the  legislation  in  England  and  such  the  fundamental 
features  of  its  law,  when  Congress  in  1800  set  about  pro- 
viding its  first  uniform  system  of  bankruptcy.  It  is  little 
wonder,  therefore,  there  being  but  incomplete  systems  in 
the  states,  that  the  English  law  became  almost  an  exact 
model  for  the  law  of  1800,  which  remained  in  force  only 
four  years. 

Not  until  1841  did  Congress  again  exercise  its  power 
under  the  Constitution,  but  at  this  time  it  grappled  with 


(1)     U.  S.  Const,  Art.  I,  sec.  8,  §  4. 


212  BANKKUPTCY 

the  problem  as  would  a  body  of  iconoclasts  and  broke 
away  from  the  narrower  acts  that  had  existed  in  the  past. 
This  law  was  not  one  to  be  invoked  by  the  creditors  only, 
but  could  be  set  in  motion  by  the  debtor  himself,  a  feature 
which  English  legislation  had  not  at  that  time  formally 
recognized;  and,  furthermore,  not  only  merchants  and 
traders  could  set  it  in  motion,  but  other  persons  as  well. 
While  it  retained  all  the  important  features  of  bank- 
ruptcy legislation  as  it  existed  in  England  at  the  time  of 
the  adoption  of  the  Constitution,  it  added  to  them  the 
features  mentioned,  and  for  the  first  time  gave  what  has 
been  termed  by  authorities  a  modern  bankruptcy  law. 
Congress  repealed  the  law  in  less  than  two  years. 

In  1867  a  third  law  was  passed,  which,  owing  to  its  be- 
ing the  copy  from  which  the  law  of  1898  was  taken,  will 
not  be  closely  examined,  but  attention  will  be  given  to  the 
latter  law  as  it  exists  and  is  enforced  today  and,  in  its 
study,  reference  will  be  made  where  advisable  to  the  law 
of  1867.  Some  few  decisions  of  the  courts  based  on  that 
law  will  also  be  used,  where  similar  questions  are  pre- 
sented for  solution  under  the  two  statutes. 

§  7.  State  versus  Federal  bankruptcy  laws.  The  Con- 
stitution gave  Congress  the  power  to  pass  bankruptcy 
laws.  From  the  preceding  statement  it  may  be  seen  that  it 
has  exercised  it  at  four  different  times,  but  long  periods 
of  time  have  elapsed  between  the  repeal  of  one  law  and 
the  passage  of  another.  During  these  periods  state 
bankruptcy  laws  are  operative  and  in  full  force.  Some 
states  have  what  may  be  deemed  modern  bankruptcy  laws 


BANKRUPTCY  213 

(2)  while  others  are  only  insolvent  or  poor  debtors'  acts 
and  stand  midway  between  the  common  law  and  a  modern 
system  in  their  operation  and  effect.  When  Congress 
passes  an  act  it  operates  to  suspend  all  state  bankruptcy 
laws  except  as  to  subjects  covered  by  state  laws  and  not 
covered  by  the  national  Act,  as  will  be  more  clearly  illus- 
lustrated  in  the  next  chapter,  §§  10-14.  By  suspension  is 
not  meant  a  repeal  but  merely  causing  to  be  dormant,  and 
when  the  Federal  law  is  repealed  such  laws  spring  again 
into  full  force.  They  are  effective  then,  not  only  to  pun- 
ish acts  done  after  the  repeal  but  even  before  the  repeal, 
which  were  not  taken  advantage  of  to  institute  proceed- 
ings under  the  national  Act. 


(2)     Rhode  Island  passed  such  a  statute  as  late  as  May  26,  1908.    See 
R.  I.  Laws,  1908,  c.  1577. 


214  BANKRUPTCY 


CHAPTER  II. 

bankrupts  and  petitioning  creditors. 

Section  1.  Who  May  Be  Bankrupt. 
§  8.  Voluntary  and  involuntary  bankrupts.  As  stated 
above,  the  earliest  bankruptcy  laws  both  in  England  and 
in  the  United  States  permitted  only  involuntary  proceed- 
ings. By  this  is  meant  that  a  party  could  be  a  bankinipt 
only  in  the  event  that  he  did  some  act,  designated  by  law, 
as  a  consequence  of  which  the  creditor  or  creditors  in- 
jured could  proceed  against  him,  compel  him  to  give  up 
his  property,  submit  to  the  conditions  imposed,  and  ac- 
cept the  benefits,  if  any,  if  not,  then  the  burdens,  of  the 
bankruptcy  law.  Thus,  involuntary  proceedings  are 
those  which  creditors  take  to  force  a  debtor  to  become  a 
bankrupt.  When  a  debtor,  however,  found  his  circum- 
stances such  as  to  make  him  desirous  of  going  through 
bankruptcy  on  his  own  initiative,  he  could  not  do  so.  It 
suggested  itself  at  once  to  shrewd  debtors  to  induce 
friendly  creditors  to  take  the  necessary  proceedings.  In 
the  course  of  the  development  of  the  laws,  the  voluntary 
feature  was  annexed,  whereby  it  became  possible  for  a 
debtor  to  make  application  to  a  court  of  bankruptcy  on 
his  own  motion,  without  the  necessity  of  resorting  to  the 
collusive  method  mentioned,  surrender  his  property,  and 
be  made  a  bankrupt. 


BANKKUPTCY  215 

Ttie  two  methods  of  becoming  a  bankrupt  exist  in  the 
law  of  1898,  but  not  all  persons,  treating  corporations  as 
artificial  persons,  are  amenable  to  the  law  in  involuntary 
proceedings,  nor  are  all  persons  capable  of  instituting 
voluntary  proceedings.  The  lines  drawn  by  the  law  will 
now  be  examined. 

§  9.  Who  may  be  voluntary  bankrupts?  All  natural 
persons  may  be  voluntary  bankrupts  ( 1 ) .  Farmers,  wage 
earners,  traders,  private  bankers,  in  fact,  any  natural 
person  owing  debts  may  be  a  voluntary  bankrupt,  entirely 
regardless  of  the  amount  of  his  debts,  of  the  relation  be- 
tween the  amount  of  the  debts  and  the  value  of  his  assets, 
or  of  the  question  whether  he  had  any  assets  at  all.  A 
person  having  enough  property  to  pay  his  debts  in  full, 
who  desires  to  discontinue  business,  may  file  a  petition  in 
the  Federal  courts  and  have  his  property  taken  by  an  of- 
ficer of  that  court  and  the  proceeds  distributed  among 
his  creditors,  thus  relieving  himself  from  the  time,  care, 
and  expense  of  disposing  of  the  assets  and  paying  the 
debts.  A  debtor  owing  but  a  single  debt  may  take  volun- 
tary proceedings.  The  petitioner  must,  however,  have 
had  his  principal  place  of  business,  resided,  or  had  his 
domicile,  for  the  preceding  six  months  or  the  greater  part 
thereof,  within  the  territorial  jurisdiction  of  the  court 
wherein  he  files  his  petition  (2). 

That  form  of  business  association  known  as  a  partner- 

(1)  Sec.  4a.  Note. — The  references  herein  made  to  a  section,  as  Sec. 
4a,  refer  to  the  sections  of  the  law  of  1898  as  amended  in  1903  and  1906. 
A  convenient  pamphlet  form  of  the  law  can  be  had  by  applying  to  Con- 
gressmen. 

(2)  In  re  Plotke,  104  Fed.  964;  Sea.  2  (1). 

Vol.  X— 10 


216  BANKRUPTCY 

ship  may  be  a  voluntary  bankrupt  (3).  One  of  the  part- 
ners may  make  the  application  and  the  partnership  be 
adjudged  a  bankrupt,  or  both  the  partnership  and  all  the 
individuals  may  join  and  be  made  bankrupts.  Further- 
more, married  women  (where  by  the  law  they  may  own 
separate  property  and  incur  liabilities)  and  infants  may 
be  voluntary  bankrupts.  Even  aliens  may  be  voluntary 
bankrupts,  if  they  have  property  in  the  court's  jurisdic- 
tion. As  to  them  the  requirement  of  domicile,  residence, 
or  principal  place  of  business,  in  the  territorial  jurisdic- 
tion of  the  court  is  dispensed  with  by  the  provision  of  the 
Act  (4). 

§  10.  Who  may  be  involuntary  bankrupts?  As  stated, 
all  natural  persons  may  be  voluntary  bankrupts.  The 
law  expressly  provides  that  artificial  persons  cannot  be 
voluntary  bankrupts,  and  its  constitutionality  has  been 
unsuccessfully  attacked  on  the  ground  that  the  classifica- 
tion permitting  natural  persons  to  invoke  the  law  and 
denying  the  artificial  persons  that  right  violated  the  uni- 
formity requirement  of  the  Constitution  (5).  All  natural 
persons  owing  debts  amounting  to  one  thousand  dollars 
or  over,  except  wage  earners  (i.  e.,  those  employed  for 
wages,  salary,  or  hire  at  a  rate  not  exceeding  one  thou- 
sand five  hundred  dollars  a  year)  and  those  engaged  in 
farming  or  the  tilling  of  the  soil,  may  be  involuntary 
bankrupts  (6).  Among  the  natural  persons  would  be 
classed  the  business  partnership  or  unincorporated  com- 

(3)  Sec.  5a. 

(4)  Sec.  2   (1). 

(5)  Leidlgh  Carriage  Co.  v.  Stengel,  95  Fed.  637.    Decision  by  Taft,  J. 

(6)  Sec.  la  (27)  ;  sec.  4b. 


BANKRUPTCY  217 

pany  and  those  mentioned  in  the  preceding  subsection 
that  may  be  voluntary  banlcrupts,  except  the  wage  earn- 
ers and  farmers.  A  limited  number  of  artificial  persons, 
i.  e.,  corporations,  may  be  made  involuntary  bankrupts. 
Thus,  those  corporations  engaged  principally  in  manu- 
facturing, trading,  printing,  publishing,  mining,  or  mer- 
cantile pursuits  may  be  adjudged  involuntary  bankrupts, 
in  case  they  owe  at  least  one  thousand  dollars  in  debts 
(7).  So  the  classification  itself  fijxes  a  narrow  limit  upon 
the  corporations  that  may  be  made  involuntary 
bankrupts. 

§  11.  Inclusion  of  corporations  strictly  construed.  The 
act  not  only  fixes  a  narrow  limit  upon  what  corporations 
may  be  involuntary  bankrupts,  but  the  courts  have  been 
illiberal  in  their  construction  of  the  law,  and,  instead  of 
giving  latitude  to  such  a  term  as  ''mercantile  pursuits," 
so  as  to  include  all  corporations  engaged  in  any  business 
for  profit  as  distinguished  from  religious,  eleemosynary, 
charitable,  social,  and  fraternal  corporations,  they  have 
narrowed  it  so  that  it  is  practically  no  broader  than  the 
term  ' '  trading, ' '  which  is  given  its  ordinary  signification 
of  buying  and  selling  articles  of  commerce  for  profit. 
Buying  and  selling  real  estate  is  not  included,  because  it 
is  not  an  article  of  commerce  (8). 

§  12.  Same:  Examples.  Thus,  corporations  engaged 
in  a  carrying  and  transportation  business,  such. as  rail- 
roads, pipe  lines  for  forwarding  oil  or  water,  and  car- 


(7)  Sec.  4b. 

(8)  In  re  Kingston  Realty  Co.,  160  Fed.  445. 


218  BANKEUPTCY 

riers  of  electricity  are  not  subject  to  the  law  (9).  Again, 
those  engaged  in  construction  work,  manufacturing  arti- 
cles attached  to  the  soil  as  distinguished  from  those  that 
are  freely  moving  articles  of  trade,  such  as  corporations 
engaged  in  erecting  concrete  arches,  constructing  dams, 
bridges,  and  houses  are,  according  to  the  interpretation 
given  by  the  courts,  not  amenable  to  the  law  (10).  This 
narrow  interpretation  given  by  the  courts  has  led  to  agi- 
tation for  provisions  in  the  law  permitting  more  corpora- 
tions to  be  made  amenable.  Amendments  were  proposed 
in  Congress  in  1908  and  1909,  by  which  ''any  monied 
business  or  commercial  corporation,"  the  language  of  the 
Act  of  1867  (11),  was  sought  to  be  substituted  for  the 
present  provision,  but  which  failed  to  become  a  law. 
Such  a  change  would  have  the  effect  of  nullifying  many 
strained  constructions  of  the  Act,  would  simplify  it  to  a 
considerable  degree,  rendering  it  at  least  easy  to  know 
what  corporations  are  excluded  from  the  terms  of  the 
Act,  and  would  seem  a  desirable  result  to  accomplish. 

By  express  language,  state  and  national  banks  are  ex- 
cepted from  the  operation  of  the  law,  the  evident  intent 
of  the  lawmakers  being  that  the  affairs  of  those  institu- 
tions that  fail  should  be  left  to  be  administered  by  the 
state  and  national  banking  laws. 

The  jurisdictional  requirements  that  the  alleged  bank- 
rupt have  his  domicile,  residence,  or  principal  place  of 


(9)  111  re  New  York,  etc.  Water  Co.,  98  Fed.  711 ;  Re  Hudson  River 
Co..  107  Fod.  980. 

(10)  Hall  Co.  V.  Friday,  158  Fed.  593;  lu  re  Kingston  Co.,  100  Fed, 
445. 

(11)  In  re  Quimby  Forwarding  Co.,  121  Fed.  139. 


BANKRUPTCY  219 

business  in  the  district  where  proceedings  are  instituted 
are  the  same  for  involuntary  bankrupts  as  for  voluntary 
(see  §  9,  above). 

§  13.  State  bankruptcy  laws  operative  where  Federal 
law  does  not  apply.  It  is  not  to  be  understood  that  because 
certain  persons  both  natural  and  artificial  may  not  be 
made  involuntary  bankrupts  by  the  Federal  bankruptcy 
law,  they  cannot  be  made  amenable  to  bankruptcy  at  all. 
Congress  did  not  expressly  make  the  law  it  passed  an  ex- 
clusive law  on  the  subject  of  bankruptcies,  thus  suspend- 
ing all  state  laws  and  every  portion  of  them,  nor  can  an 
intention  to  have  it  so  interpreted  be  gathered  from  the 
Act.  Thus  it  follows  that  persons  not  amenable  to  the 
national  law  may  nevertheless  be  made  bankrupts  under 
the  state  law,  if  one  exists,  with  features  admitting  it, 
in  the  presence  of  the  national  law.  It  does  not  follow, 
however,  merely  because  the  state  and  the  Federal  law 
both  cover  the  same  field  that  a  person  may  be  amenable 
to  the  state  law,  for,  wherever  they  do  so  overlap,  the 
Federal  Act  is  exclusive  and  controls.  Illustrating  this 
principle,  it  has  been  held  that  a  farmer,  who  may  not  be 
adjudged  an  involuntary  bankrupt  under  the  Act,  may 
nevertheless  be  forced  into  bankruptcy  under  a  state  law 
permitting  it  (12) ;  that  persons  owing  less  than  the 
amount  fixed  by  the  Federal  law  to  make  them  amenable 
to  it  at  the  suit  of  creditors  (13) ;  or  a  corporation  not 
amenable  to  it  at  all  (14)  may  be  adjudged  involuntary 


(12)  Old  Town  Bank  of  Baltimore  v.  McCormick,  96  Md.  341. 

(13)  Shepardson's  Appeal,  36  Conn.  23. 

(14)  Herron  Co.  v.  Superior  Court,  136  Cal.  279.  A  mining  corpo- 
ration was  adjudicated  an  involuntary  bankrupt,  before  the  Act  was 
amended  so  as  to  make  a  mining  corporation  amenable. 


220  BANKRUPTCY 

bankrupts  under  a  state  law  providing  for  it.  The  Fed- 
eral system  suspends  the  state  systems  wherever  they 
overlap;  where  they  do  not,  they  work  in  perfect  har- 
mony and  conjunction. 

§  14.  Business  in  which  corporation  is  engaged  and  not 
charter  powers  control.  The  law  states  that  a  corporation, 
if  engaged  principally  in  manufacturing,  etc.,  may  be 
forced  into  bankruptcy,  and  the  question  has  frequently 
arisen  whether  the  business  for  which  it  was  incorporated 
would  control  or  the  business  it  actually  carried  on,  and 
the  courts  have  held  that  the  latter  controlled  (15). 

Section  2.    Petitioning  Creditors. 

§  15.  Explanation  of  term.  Involuntary  proceedings 
are  those  that  are  instituted  by  others  against  the  debtor, 
and  consequently  a  moving  party  or  parties  are  required. 
Those  that  set  in  motion  the  machinery  of  the  courts  to 
bring  about  the  bankruptcy  of  another  are  called  peti- 
tioning creditors,  because  they  join  in  a  petition  setting 
out  facts  sufficient  to  give  the  court  jurisdiction  and 
power  to  enter  a  decree  of  adjudication.  Among  these 
facts  are  the  act  of  bankruptcy,  and,  if  a  corporation,  the 
business  in  which  it  is  principally  engaged,  the  duration 
of  the  residence,  domicile,  or  principal  place  of  business 
of  the  alleged  bankrupt  in  the  court's  territorial  juris- 
diction, the  amount  owed  petitioning  creditors,  etc. 

§  16.  Who  may  be  petitioning  creditors?  It  has  been 
shown  that  in  voluntary  proceedings  the  debtor  himself 
is  the  moving-  party,  and  when  seeking  the  jurisdiction  of 


(15)     In  re  Toutlue  Surety  Co.,  IIG  Fed.  401. 


BANKRUPTCY  221 

a  bankruptcy  court  lie  himself  files  a  petition  asking  that 
he  be  adjudged  a  bankrupt.  The  proceeding  is  less  sim- 
ple in  involuntary  cases,  as  the  qualification  of  petitioning 
creditors,  the  number  required,  the  commission  of  an  act 
of  bankruptcy  by  the  alleged  bankrupt,  and  similar  ques- 
tions tend  to  complicate  it.  As  a  general  rule  all  per- 
sons having  provable  claims  against  an  alleged  bankrupt 
may  be  petitioning  creditors  (16).  Who  have  provable 
claims  is  fixed  by  the  law  and  will  be  fully  considered 
later  (17). 

§  17.    Number  of  petitioning  creditors  required.    The 

law  provides  that,  if  there  are  twelve  or  more  creditors 
having  provable  claims,  then  at  least  three  creditors  must 
join  in  the  petition;  and,  furthermore,  the  aggregate  of 
the  claims  of  those  creditors  must  be  five  hundred  dollars 
or  over.  If,  however,  the  alleged  bankrupt  has  less  than 
twelve  creditors,  one  petitioning  creditor  whose  claim 
amounts  to  five  hundred  dollars  or  more  may  file  the  peti- 
tion (18).  The  petitioning  creditor  or  creditors  through 
this  petition  present  to  the  court  the  facts  with  reference 
to  the  alleged  bankrupt,  upon  which  they  rely  to  compel 
him  to  surrender  his  property  to  the  court  to  be  admin- 
istered for  the  benefit  of  all  the  creditors.  In  order  that 
he  may  be  made  a  party  to  the  proceeding,  it  is  required 
that  he  be  summoned  to  appear  before  the  court  to  show 
why  he  should  not  be  dealt  with  under  the  bankruptcy 
law. 


(16)  Sec.  59b. 

(17)  Sec.  63.    See  Chapter  V,  below. 

(18)  Sec.  59b. 


222  BANKRUPTCY 

§  18.  Limitations  upon  rights  of  creditors  to  join  ia 
petition.  The  most  obvious  limitation  upon  the  right  of 
creditors  to  join  in  a  petition  is  that  pointed  out  by  the 
law  itself,  which  denies  to  the  creditor  the  right  to  peti- 
tion in  respect  to  any  portion  of  his  claim  that  is  covered 
by  securities  held  by  him  (19).  This  leads  logically  to 
the  conclusion  that  creditors  holding  claims  that  are  en- 
tirely secured  cannot  join  in  a  petition,  unless  they  give 
up  their  security  and  proceed  as  unsecured  creditors 
(20).  A  secured  creditor  is  not  one  holding  a  claim  se- 
cured merely  by  the  personal  obligation  of  another,  or 
even  by  property  of  the  surety  or  guarantor  whose  per- 
sonal obligation  secures  it,  but  he  is  one  who  either  holds 
property  himself  which  belongs  to  the  bankrupt  which  the 
latter  has  pledged,  to  secure  the  claim,  or  has  recourse 
to  the  bankrupt's  property  in  the  hands  of  the  debt- 
or's surety  to  whom  it  was  pledged  as  security.  The 
test  of  a  secured  creditor  is  whether  his  claim  will  either 
directly  through  himself  or  indirectly  through  some  third 
person,  who  has  become  a  surety  or  guarantor  of  the 
claim,  draw  or  withdraw  some  specific  portion  of  the 
debtor's  property  from  the  assets  available  to  pay  gen- 
eral creditors  (21). 

Another  limitation  upon  such  right  is  that  presented 
by  a  situation  where  creditors  have  assented  to  or  joined 
in  the  execution  of  a  deed  of  assignment  for  the  benefit 
of  the  creditors.  Such  an  assent,  where  the  act  of  making 
the  assignment  is  relied  on  in  the  petition  against  the  al- 

(19)  Sec.  59b. 

(20)  Re  Alexander,  1  Lowell,  470. 

(21)  Sec.  la   (23). 


BANKRUPTCY  223 

leged  bankrupt  as  the  act  of  bankruptcy,  incapacitates  the 
assenting  creditors  from  joining  in  the  petition.  The  law 
does  not  tolerate  such  inconsistent  action  on  the  part  of 
creditors,  and  they  cannot  at  one  time  give  their  approval 
to  the  execution  of  a  deed  of  assignment,  and  at  a  later 
time  attack  the  assignment  and  make  it  the  basis  of  a 
proceeding  to  put  the  assignor  into  bankruptcy  (22). 

(22)     In  re  Romanow,  92  Fed.  510. 


224  BANKEUPTCy 


CHAPTER  III. 
ACTS  OF  BANKRUPTCY. 

§  19.  Act  of  bankruptcy  necessary  for  involuntary  pro- 
ceedings. In  the  earliest  English  bankruptcy  legislation, 
creditors  could  proceed  against  a  debtor  only  in  case  he 
had  violated  some  specific  provision  of  a  statute,  and  had, 
so  to  speak,  committed  a  quasi-criminal  offense.  Such  a 
requirement  still  persists.  Under  the  present  law  credi- 
tors are  required  to  show  that  the  debtor,  either  of  his 
own  volition  or  from  unavoidable  circumstances,  has  af- 
firmatively perpetrated  some  act  prohibited  by  it,  or  by 
inaction  has  left  something  undone  which  he  should  have 
done,  before  they  can  subject  him  to  its  provisions  as  to 
surrender  of  property,  distribution  of  assets,  and  other 
features.  To  state  the  same  thing  more  briefly,  they  are 
required  to  show  that  he  has  committed  one  or  more  of 
several  so-called  a-cts  of  bankruptcy  (1). 

§  20.  Act  of  bankruptcy  not  essential  in  voluntary  pro- 
ceedings. Wliile  it  is  necessary  in  involuntary  proceed- 
ings for  creditors  to  establish  some  act  done  by  a  debtor 
prohibited  by  the  statute,  this  is  not  true  in  cases  where  a 
debtor  seeks  the  jurisdiction  of  a  bankruptcy  court  of  his 
own  motion.  He  may  invoke  that  jurisdiction  with  no 
other  motive  than  that  of  being  relieved  of  the  burden  of 

(1)     Sec.  3a. 


BANKRUPTCY  225 

distributing  his  property  at  his  own  expense,  rather  than 
at  the  expense  of  his  creditors.  Thus,  he  may  have  suf- 
ficient property  to  meet  all  of  his  debts  and  desire  to  dis- 
continue business,  but  be  reluctant  to  assume  the  task  of 
selling  his  property  and  turning  it  into  money  for  his 
creditors.  He  may  cast  this  responsibility  on  them  by 
surrendering  it  as  stated,  and  in  the  end  procure  from  the 
court  a  discharge  from  his  liabilities  without  any  act  of 
bankruptcy.  An  examination  of  the  various  acts  of  bank- 
ruptcy follows. 

§  21.  Fraudulent  conveyances:  Statute  of  Elizabeth. 
The  foundation  of  the  first  act  of  bankruptcy,  that  of 
conveying  property  with  intent  to  hinder,  delay,  and  de- 
fraud creditors  (2)— more  commonly  styled  making  a 
fraudulent  conveyance— is  historically  traceable  to  a 
period  of  time  antedating  the  earliest  English  bankruptcy 
legislation.  Creditors  had  certain  recognized  rights  in 
fraudulent  conveyances  at  common  law.  But  in  the  year 
1570  the  English  Parliament  passed  an  act  with  refer- 
ence to  such  conveyances.  It  is  always  referred  to  in 
bankruptcy  and  insolvency  matters  as  the  statute  of 
Elizabeth.  It  made  it  a  criminal  offense  knowingly  to 
participate  in  a  conveyance  made  by  a  debtor  with  an  in- 
tent to  defraud  his  creditors,  and  declared  that  such  con- 
veyances should  be  void  as  to  them;  but  protected  pur- 
chasers of  the  property  in  any  rights  they  acquired  with- 
out knowledge  of  the  fraud.  This  statute  was  largely 
declaratory  of  the  common  law.  Since  its  passage  it  is 
generally  looked  upon  as  the  source  of  the  rights  of  credi- 

(2)     Sec.  3a  (1). 


226  BANKRUPTCY 

tors  to  defeat  fraudulent  conveyances.  The  creditor's 
remedy  at  common  law  and  under  this  statute  is  simple. 
He  realizes  his  claim  out  of  his  debtor's  property  by  pro- 
ceeding against  it  by  attachment  or  execution,  as  if  the 
title  or  possession  or  both  were  still  in  the  debtor.  He 
seizes  and  sells  it  as  if  it  were  still  the  debtor's  property. 
If  it  cannot  be  sold  advantageously  by  reason  of  a  cloud 
on  the  title  created  by  the  deed  of  conveyance,  as  often 
happens  in  the  case  of  land,  he  may  proceed  in  equity  to 
remove  the  cloud. 

§  22.  Same :  In  bankruptcy  act.  As  this  statute  ex- 
isted before  the  settlement  of  the  colonies,  it  is  deemed  a 
part  of  the  common  law  of  the  states  and  regulates  the 
rights  of  creditors  in  fraudulent  conveyances  even  today, 
subject  to  certain  modifications  and  developments.  It 
was  this  historical,  part  common  law  and  part  statutory, 
conception  of  a  fraudulent  conveyance  as  developed  in 
the  various  states  that  Congress  intended  to  be  applied 
in  determining  when  a  debtor  has  violated  this  section  of 
the  bankruptcy  law  (3).  As  there  are  numerous  con- 
veyances which  the  common  law  pronounces  fraudulent 
toward  creditors— the  machinations  of  debtors  to  cheat 
their  creditors  having  assumed  as  many  forms  as  human 
ingenuity  could  invent— and  which  are,  therefore,  con- 
sidered acts  of  bankruptcy,  an  examination  of  some  of 
them  to  ascertain  their  peculiar  characteristics  and  also 
the  underlying  principles  of  the  common  law  and  statute 
of  Elizabeth  is  essential  to  a  correct  understanding  of 


(3)     Lansing  Boiler  Worlis  v.  Ryerson,  128  Fed.  701. 


BANKRUPTCY  227 

what  constitutes  a  violation  of  the  section  of  the  statute 
prohibiting  such  conveyances. 

§  23.  Retention  of  possession  by  seller.  It  is  a  rule 
under  the  common  law  and  statute  of  Elizabeth,  that,  if  a 
debtor  makes  a  transfer  of  chattels  by  bill  of  sale  and  re- 
mains in  possession  of  them,  with  no  circumstances  tend- 
ing to  explain  his  retention  of  possession,  the  transfer  is 
a  fraudulent  conveyance.  Thus,  in  an  English  case, 
where  a  debtor  owed  the  plaintiff  £22  for  goods  sold  and 
the  defendant  £191  for  money  lent,  he  purported  by  bill  of 
sale  to  transfer  his  entire  household  furniture  and  stock 
in  trade  to  the  defendant  as  security  in  payment  of  the 
debt,  but  remained  in  possession  of  the  property;  the 
court  held  that  the  conveyance  was  fraudulent  and  void 
as  to  the  plaintiff,  saying:  ''If  a  man  sells  goods  and  still 
continues  in  possession  as  visible  owner  of  them,  such 
sale  is  fraudulent  and  void  as  to  creditors,  and  the  law 
has  been  always  so  held"  (4).  Other  cases  have  taken  a 
less  strict  view,  holding  on  a  similar  set  of  facts,  that  the 
retention  of  possession  was  merely  some  evidence  of  an 
intent  to  execute  a  fraudulent  conveyance,  but  might  be 
rebutted  (5). 

§24.  Conveyances  in  consideration  of  support  of 
grantor.  Another  form  of  conveyance  which  the  courts 
have  held  fraudulent  is  that  of  a  debtor  transferring  his 
property  to  another  for  the  latter 's  promise  to  support 
him  during  the  remainder  of  his  life.  This  is  the  rule 
even  where  the  debtor  has  no  actual  intent  to  hinder  his 


(4)  Edwards  v.  Ilarbeu,  2  Term  Rei)orts,  5S7. 

(5)  Martiudale  v.  Booth,  3  B.  &  A.  498. 


228  BANKKUPTCY 

creditors.  Thus,  in  one  case,  a  debtor  wlio  was  seventy- 
two  years  old  conveyed  his  house  and  lot  to  another  for 
the  latter 's  agreement  to  support  him  the  rest  of  his  life. 
At  the  time  of  the  conveyance  the  debtor  supposed  he  had 
paid  all  his  debts,  but  it  transpired  later  that  he  had  cer- 
tain creditors.  The  court  held  the  conveyance  was  void 
as  to  those  creditors  (6).  And  this  seems  to  be  the  rule 
even  though  there  is  every  possibility  of  the  debtor's  liv- 
ing sufficiently  long  to  make  the  property  transferred  in 
the  conveyance  only  reasonably  adequate  compensation 
for  the  support  promised.  The  underlying  objection  is 
the  transformation  of  the  property  into  a  form  upon 
which  creditors  cannot  realize,  although  the  promise  to 
support  received  in  return  was  adequate  value  for  the 
property  conveyed  away.  The  rule  in  the  various  states 
is  almost  uniformly  in  accord  with  that  illustrated  by  the 
instance  given.  But  in  England  il  seems  a  different  rule 
prevails  (7). 

§  25.  Inadequacy  of  price.  In  the  preceding  subsection 
the  debtor  received  what  ordinarily  would  be  deemed  full 
compensation  for  the  transfer,  yet  creditors  may  attack 
such  a  conveyance  owing  to  the  fact  that  the  compensa- 
tion was  inadequate  in  that  it  was  unavailable  to  them. 
Some  courts  have  held  that  a  sale  by  a  debtor  of  prop- 
erty for  which  he  received  an  inadequate  price  is  fraudu- 
lent and  may  be  avoided.  Thus,  it  was  held  that  the  con- 
veyance of  land  worth  two  thousand  dollars  for  the  con- 
sideration of  one  hundred  dollars  was  fraudulent,  as  a 


(6)  Egery  v.  Johnson,  70  Me.  25S. 

(7)  In  re  Johnson.  20  Ch.  Div.  389. 


BANKRUPTCY  229 

matter  of  law,  leaving  no  question  of  fact  even  to  be  de- 
cided by  a  jury  (8).  Upon  such  facts  many  courts  would 
say  that  the  jury  should  be  permitted  to  say  whether  the 
conveyance  was  fraudulent,  while  others  say  that  these 
are  not  even  inferences  from  which  a  jury  can  reasonably 
find  that  the  conveyance  was  intended  to  be  fraudulent 
(9).  It  would  seem  that  the  rule  ought  to  be  that  it  is 
some  evidence,  which  may  be  taken  into  consideration  by 
the  jury  or  court  with  other  facts  in  determining  whether 
the  debtor  intended  to  defraud  his  creditors. 

§  26.  Conveyance  upon  secret  trust.  A  conveyance  of 
property  by  a  debtor  to  another,  with  a  secret  under- 
standing between  them  that  the  latter  is  merely  to  hold  it 
in  trust  for  him  for  a  time  until  financial  troubles  shall 
have  passed,  is  void,  and  may  be  attacked  by  creditors 
who  are  prejudiced  by  it.  The  rule  is  the  same  where 
the  conveyance  is  made  to  secure  advances,  but  the  deed 
of  conveyance,  which  far  exceeds  in  value  the  amount  of 
the  loan,  is  made  absolute,  with  the  secret  understanding 
that  it  is  to  operate  as  a  mortgage  instead  of  making  the 
deed  in  form  a  mortgage.  Thus,  a  debtor  conveyed  land 
exceeding  in  value  the  sum  of  two  thousand  dollars  ad- 
vanced to  him  as  a  loan.  The  deed  purported  to  convey  a 
title  absolute.  The  intention  of  the  parties  was,  in  fact, 
that  the  title  should  be  held  merely  as  a  security  for  the 
loan,  and,  when  that  was  repaid,  it  should  be  reconveyed. 
It  wag  held  that  the  deed  was  void  (10).  In  such  a  case, 
where  there  is  no  actual  intent  to  defraud,  but  merely  cir- 

(8)  Scoggin  V.  Schloath,  15  Ore.  380. 

(9)  Jaeger  v.  Kelly.  52  N.  Y.  274. 

(10)  Stratton  v.  Putney,  63  N.  H.  577. 


230  BANKRUPTCY 

cumstances  from  wHcli  courts  presume  sucli  an  intent, 
the  transferee  may  attach  a  lien  to  the  land  for  the  loan 
he  made  in  good  faith. 

§  27.  Conveyances  both  to  pay  past  debt  and  to  defraud 
creditors.  The  law  discourages  a  conveyance  of  property, 
part  of  which  is  to  be  applied  in  pajnnent  of  an  honest 
debt  and  the  balance  to  be  held  by  the  transferee  in  trust 
to  prevent  creditors  from  getting  it.  If  the  transferee 
knows  and  participates  in  the  debtor's  intent  to  defraud 
his  creditors,  the  conveyance  cannot  stand  to  any  amount 
against  the  creditors.  They  may  set  it  aside  without  per- 
mitting the  transferee  to  retain  a  lien  on  the  property  for 
the  amount  of  his  honest  claim.  A  grantor  of  land  was  in- 
debted to  another  in  the  sum  of  eight  thousand  dollars. 
To  i^ay  the  latter  he  deeded  him  land  which  was  worth 
much  more  than  the  amount  of  his  claim.  In  order  to 
make  the  transaction  appear  fair,  the  debtor  and  creditor 
jointly  fabricated  a  fictitious  debt  for  board  and  washing. 
The  court  held  the  conveyance  was  fraudulent  as  to  cred- 
itors, and  refused  to  permit  a  lien  to  be  attached  for  the 
honest  debt  of  eight  thousand  dollars,  saying:  ''The  con- 
tention that  the  conveyance  may  be  sustained  to  the  ex- 
tent of  the  adequate  and  honest  part  of  the  consideration 
is  fully  answered  by  the  authorities,  which  hold  that  when 
the  deed  is  fraudulent  against  creditors  it  is  wholly  void 
and  cannot  stand  to  any  extent  as  security  or  indem- 
nity" (11). 

§  28.  Preferment  of  creditors.  At  common  law  debtors 
were  i)ennitted  to  i)refer  creditors  if  they  desired.     By 


(11)     Baldwin  v.  Sbort,  125  N.  Y.  553. 


BANKEUPTCY  231 

giving  a  preference  is  meant  tbe  payment  to  one  creditor 
of  an  honest  debt  without  paying  a  like  proportion  to 
others.  And  a  debtor  could  do  this,  if  he  did  it  with  the 
actual  intention  of  making  pajTnent  merely,  even  though 
he  intended  not  to  pay  others  and  even  though  the  credi- 
tor paid  knew  this  fact.  In  a  certain  case  a  husband  had 
land,  for  which  he  had  made  payment,  conveyed  to  his 
wife  in  satisfaction  of  a  debt  he  owed  her  for  money  she 
had  loaned  him  after  their  marriage.  The  court  held  the 
conveyance  could  not  be  attacked  by  creditors.  It  arrived 
at  this  conclusion  although  the  debt  to  the  wife  was  barred 
by  the  statute  of  limitations  (12).  From  this  case  may  be 
deduced  the  principle  that  at  common  law  and  under  the 
statute  of  Elizabeth  it  was  not  a  fraud  upon  creditors  for 
a  debtor  to  pay  one  of  his  creditors  in  full  to  the  exclusion 
of  others. 

§29.  Exchanging  non-exempt  for  exempt  property. 
The  universal  rule  in  the  various  states  allows  a  debtor, 
who  owns  non-exempt  property,  to  exchange  it  for  or  in- 
vest it  in  exempt  property,  which  creditors  cannot  take 
from  him  to  satisfy  their  claims,  without  permitting  the 
unpaid  creditors  to  take  any  advantage  of  his  action.  A 
Nebraska  farmer  owned  a  farm  worth  sixty-one  hundred 
dollars  of  which  two  thousand  dollars  were  exempt  from 
creditors  and  forty-one  hundred  not  exempt.  He  sold 
this  farm  and  invested  all  the  money  in  a  Kansas  farm, 
all  of  which  was  exempt  by  the  law  of  the  latter  state.  A 
party  who  was  a  creditor  while  he  owned  the  Nebraska 
farm  sought  to  collect  his  claim  out  of  the  Kansas  land. 


(12)     French  v.  Motley,  63  Me.  326. 

Vol.  X— 1 7 


232  BANKRUPTCY 

The  court  held  he  could  not  do  this,  as  the  debtor  had  a 
right  to  transform  his  property  from  non-exempt  to  ex- 
empt property  without  giving  the  unpaid  creditors  any 
basis  of  complaint  (13). 

§  30.  Voluntary  conveyances.  A  very  common  form  of 
conveyance  by  debtors,  which  is  attacked  by  creditors,  is 
the  so-called  voluntary  conveyance.  By  this  is  under- 
stood a  transfer  of  valuable  property  without  receiving 
compensation  therefor,  or,  in  short,  as  a  gift.  Convey- 
ances by  husband  to  wife  or  parent  to  child,  as  a  gift, 
with  no  intention  or  thought  of  hindering  creditors  are 
common,  and  whether  or  not  such  a  conveyance  can  be 
successfully  attacked  by  creditors  depends  upon  the  cir- 
cumstances of  the  case  and  the  jurisdiction  where  it  is 
made.  There  is  a  well  known  principle  of  the  law  of  fraud- 
ulent conveyances  embodied  in  the  language  that ' '  A  man 
should  be  just  before  he  is  generous."  It  has  particular 
application  to  cases  of  voluntary  conveyances  made  by 
debtors. 

§  31.  Same:  Conflicting  views.  A  debtor  may  make 
a  voluntary  conveyance,  and  as  a  result  leave  himself 
with  insufficient  property  in  his  possession  to  meet  his 
honest  debts.  Such  a  conveyance  as  a  gift  is  void  and 
may  be  successfully  set  aside.  If,  however,  he  should 
make  a  voluntary  transfer  of  property  and  have  remain- 
ing sufficient  property  to  meet  all  of  his  debts,  even  after 
the  transfer,  some  jurisdictions  hold  that  the  creditors 
have  no  basis  for  an  attack  on  the  transaction  and  others 
hold  that  they  have.    Chancellor  Kent  of  New  York,  in 


(13)     First  National  Bank  v.  Glass,  79  Fed.  706. 


BANKRUPTCY  233 

laying  down  tlie  rule  for  that  state,  wliich  is  but  a  type 
of  one  class  mentioned,  said:  **If  the  party  be  indebted 
at  the  time  of  the  voluntary  settlement  it  is  presumed  to 
be  fraudulent  in  respect  to  such  debts,  and  no  circum- 
stance will  permit  those  debts  to  be  affected  by  the  settle- 
ment or  repel  the  legal  presumption  of  fraud"  (14). 
With  no  motive  to  defraud,  the  debtor's  act  is  neverthe- 
less reprehensible  in  the  eyes  of  the  law,  contrary  to  the 
principle  that  a  man  should  be  just  before  he  is  generous, 
and  some  courts  hold  such  conveyances  bad,  entirely  ir- 
respective of  any  actual  intent  to  defraud  and  of  the  fact 
that  he  had  sufficient  property  remaining  to  meet  all  of 
his  just  debts  at  the  time  of  the  conveyance. 

By  far  the  greater  number  of  states,  however,  take  the 
opposite  view,  and  hold  that  where  the  debtor  has  suf- 
ficient property  remaining  after  making  the  gift  to  meet 
all  of  his  debts— that  is,  is  solvent— the  creditors  cannot 
have  the  conveyance  set  aside  to  be  applied  to  pay  their 
claims.  In  one  case  a  father,  owing  seven  thousand 
dollars  in  debts  and  owning  property  valued  at  ninety- 
one  thousand  dollars,  made  a  gift  to  his  daughter,  on  her 
marriage,  of  property  valued  at  from  six  to  ten  thousand 
dollars.  Ten  years  later  some  of  the  debts  were  still  un- 
paid, the  debtor  then  having  no  other  property.  The 
court  held  the  deed  could  not  be  set  aside  (15). 

§  32.  Proof  of  solvency.  In  connection  with  the  latter 
rule,  the  relation  between  the  amount  of  property  and  the 
amount  of  claims  outstanding  would  depend  largely  upon 

(14)  Reade  v.  Livingston,  3  Johnson's  Ch.  (N.  Y.)  481. 

(15)  Warren  v.  Moody,  122  U.  S.  132. 


234  BANKEUPTCY 

the  property  that  is  considered  and  the  claims  included  in 
taking  the  estimate  of  the  debts.  Thus,  land  that  is  ex- 
empted (because  it  may  be  voluntarily  used  to  pay  debts), 
notes,  accounts,  and  all  forms  of  assets  are  to  be  counted 
in  making  up  the  value  of  the  debtor's  property. 

On  the  other  hand,  besides  the  ordinary  debts  which 
would  concededly  be  considered,  demands  arising  from 
tort,  from  breach  of  promise  to  marry,  from  a  debtor's 
obligation  as  a  surety  on  notes  that  have  not  become  due 
and  in  the  payment  of  which  the  principal  had  not  made 
default,  from  a  guarantor's  obligation  that  another  will 
perform  a  certain  contract  which  was  not  broken  at  the 
time  of  the  conveyance  and  perhaps  never  will  be,  and 
liabilities  on  secured  claims  and  others  of  similar  con- 
tingent and  uncertain  character,  are  to  be  counted  in  de- 
termining the  amount  of  indebtedness.  This  rule  is  ap- 
parently adopted  because  persons  having  claims  of  the 
character  enumerated  may  attack  a  fraudulent  convey- 
ance and  have  it  set  aside,  they  being  among  the  persons 
whom  the  law  seeks  to  protect  against  the  frauds  of  those 
who  are  obligated  to  meet  these  claims.  Inasmuch  as  per- 
sons having  such  contingent  claims  have  a  right  to  com- 
plain of  a  fraudulent  conveyance,  their  claims  are  in- 
cluded in  the  estimate  of  the  amount  of  indebtedness. 

This  common  law  test  of  insolvency  is  veiy  different 
from  that  laid  down  by  the  provisions  of  the  Act  (16), 
and  is  only  to  be  applied  when  the  trustee  in  bankruptcy 
seeks  to  set  aside  a  fraudulent  conveyance.  It  is  much 
more  drastic  against  the  debtor,  in  that  it  permits  the  trus- 


/16)     Sec  la    (15). 


BANKRUPTCY  235 

tee  or  attacking  party  to  add  to  the  claims  deemed 
provable  under  the  Act  many  that  are  not  provable,  and 
thus  to  swell  his  indebtedness  and  increase  the  possibili- 
ties of  an  insolvent  condition.    Compare  §§  77-78  below. 

§  33.  Future  creditors  may  attack  fraudulent  convey- 
ances. The  English  Parliament  in  1570  passed  an  act,  al- 
ready referred  to,  with  reference  to  fraudulent  convey- 
ances, and  fixed  certain  penalties  for  making  them  or  par- 
ticipating in  them.  It  is  to  this  act  (17)  that  the  founda- 
tion of  the  laws  of  fraudulent  conveyances  is  frequently 
erroneously  referred,  as  it  in  fact  existed  even  before 
the  passage  of  this  statute.  However,  it  added  certain 
features  to  the  common  law  rules.  Among  these  is  the 
right  it  gave  persons  who  were  in  no  sense  creditors  at 
the  time  a  fraudulent  conveyance  was  executed  to  attack 
such  a  conveyance.  It  aimed  to  protect  all  creditors  and 
"others,'*  as  stated  in  one  part  of  the  statute,  and  all 
"persons,"  as  stated  in  another  part. 

So  it  has  been  settled  that  if  a  party  makes  a  convey- 
ance of  his  property,  with  the  express  intent  to  become 
indebted  to  another  in  the  future  and  to  defraud  him  of 
his  claim  by  means  of  this  trick,  such  creditor  may  defeat 
the  transfer,  although  he  was  not  a  creditor  and  had  not 
even  a  claim  against  the  debtor  at  the  time  of  the  trans- 
fer. It  has  also  been  held,  that,  if  a  debtor  were  indebted 
to  another  when  he  conveyed  property  as  a  gift,  and  then 
subsequently  incurred  other  debts,  which  were  not  paid, 
the  future  creditor  could  set  aside  the  conveyance  by 
merely  showing  that  the  debtor  owed  debts  at  the  time  of 

(17)     13  Elizabeth,  c.  5. 


236  BANKRUPTCY 

the  conveyance.  The  theory  of  the  decison  rests  upon  a 
rule  that  where  a  voluntary  conveyance  is  fraudulent 
as  to  present  creditors  it  is  fraudulent  as  to  future  credi- 
tors (18). 

§  34.  How  intent  to  defraud  future  creditors  shown. 
To  prove  an  actual  intent— a  state  of  mind— to  defraud 
future  creditors  is,  of  course,  difficult  to  do.  As  a  conse- 
quence it  may  be  inferred  from  the  surrounding  circum- 
stances. Thus,  it  has  been  held  that  the  mere  existence 
of  a  debt  at  the  time  a  voluntary  conveyance  is  made, 
leaving  insufficient  property  to  pay  it,  is  sufficient  proof 
to  establish  the  intent  to  defraud,  even  though  the  exist- 
ing creditor  had  since  been  paid  (19).  And  the  fact  that 
a  debtor  immediately  entered  into  a  hazardous  business 
is  considered  strong  evidence  tending  to  prove  such  in- 
tent (20)  but  it  is  not  conclusive  proof. 

§  35.  General  assignments  for  benefit  of  creditors.  A 
common  device  resorted  to  by  a  debtor  in  stringent  cir- 
cumstances is  to  make  a  transfer  of  all  his  property  to  an- 
other as  trustee,  in  trust  to  distribute  it  or  its  proceeds 
among  all  of  the  creditors.  In  the  absence  of  statutory 
prohibition  there  is  no  objection  to  such  an  assignment. 
However,  such  an  assignment  cannot  contain  provisions 
that  tend  to  delay  the  creditors.  Thus,  in  a  case  where 
the  deed  of  assignment  provided  that  the  assignee  should 
in  his  discretion  carry  on  the  business  for  such  time  as  he 
should  think  it  for  the  best  interests  of  the  creditors  and 
necessary  for  the  purpose  of  preventing  shrinkage  or 


(18)  Freeman  v.  Pope,  5  Ch.  App.  538. 

(19)  Marston  v.  Marston,  54  Me.  476. 

(20)  Hagerinan  v.  Buchanan,  45  N.  J.  E.  292. 


BANKRUPTCY  237 

loss,  the  court  held  the  conveyance  was  fraudulent,  as 
the  deed  attempted  to  leave  the  question  whether  the 
debtor  should  have  further  indulgence  with  him  instead 
of  with  the  creditors,  where  it  belonged  (21).  Making 
such  a  conveyance  is  an  act  of  bankruptcy  under  that  por- 
tion of  the  Act  which  prohibits  fraudulent  conveyances.  A 
general  assignment  which  has  no  features  that  are  ob- 
jectionable under  the  common  law  is  prohibited  by  an- 
other portion  of  the  statute  (22),  and  the  act  of  making 
such  a  conveyance  subjects  the  granl'sr  to  a  bankruptcy 
proceeding  in  the  Federal  courts.  This  proceeding  is  not 
based  on  the  ground  that  the  debtor  made  a  fraudulent 
conveyance,  but  on  the  ground  that  he  made  a  convey- 
ance prohibited  by  the  Act. 

§  36.  Assignments  with  preferences.  At  common  law 
an  assignment  wherein  a  debtor  made  provisions  for 
paying  some  creditors  a  greater  proportion  of  their  claim 
than  others  was  allowable.  Preferences  are  entirely  un- 
objectionable at  common  law.  Such  assignments  are, 
however,  in  most  states  prohibited  by  statute,  and  are,  as 
will  be  seen  below,  prohibited  under  the  national  bank- 
ruptcy law  by  making  a  preference  an  act  of  bankruptcy. 
By  the  law  of  some  states,  if  a  deed  of  assignment  contains 
a  clause  providing  for  a  preference  to  some  creditor  or 
creditors,  the  entire  deed  is  void  and  of  no  effect  and  is 
treated  as  a  fraudulent  conveyance.  Other  states  merely 
invalidate  the  clause  giving  the  preference,  and  permit 
the  creditor  whom  the  debtor  sought  to  prefer  to  receive 

(21)  Gardner  v.  Commercial  National  Bank,  95  111.  298. 

(22)  Sec.  3a   (4). 


238  BANKEUPTCY 

only  his  pro  rata  portion  the  same  as  other  general 
creditors. 

§  37.  Preferences.  It  has  been  stated  above  (§28)  that 
a  preference  is  the  payment  by  a  debtor  of  an  honest  debt, 
or  a  portion  thereof,  to  one  or  more  of  his  creditors  with- 
out paying  a  like  proportion  to  other  creditors.  It  was 
also  stated  that  this  may  be  done  at  common  law.  This  is 
not  true  under  the  Act  (23).  Either  voluntarily  giving, 
or  involuntarily  and  unavoidably  suffering  and  permit- 
ting (24)  a  preference  to  be  acquired,  constitutes  an  of- 
fense under  the  statute  upon  which  a  petition  in  bank- 
ruptcy can  be  based. 

§  38.  How  creditors  may  force  debtor  to  commit  an  act 
of  bankruptcy.  It  is  in  connection  with  the  law  of  prefer- 
ences that  creditors  are  given  a  means  under  the  statute 
of  forcing  an  insolvent  debtor,  who  makes  no  move  other- 
wise prohibited  by  the  law  upon  which  proceedings 
against  him  may  be  based,  to  commit  an  act  of  bank- 
ruptcy. This  they  accomplish  by  procuring  a  judgment 
against  him,  levying  upon  his  property,  and  fixing  a  day 
for  its  sale.  If  he  fails  to  vacate  the  levy  within  five  days 
of  the  day  set  for  the  sale,  he  will  have  committed  an  act 
of  bankruptcy  (25).  If,  on  the  other  hand,  he  pays  the 
judgment  and  thus  vacates  it,  being  insolvent,  he  will 
have  paid  the  judgment  creditor  in  full,  whereas  no  pay- 
ment has  been  made  to  other  creditors,  and  will  have  vio- 
lated another  part  of  the  law  (26).    If  he  does  not  vacate 


(23)  Sec.  3a  (2)  and  (3). 

(24)  Wilson  v.  Nelson,  183  U.  S.  191. 

(25)  Sec.  3a  (3). 

(26)  Sec.  3a  (2). 


BANKEUPTCY  239 

the  lien  he  will  be  guilty  of  an  act  of  bankruptcy,  and  he 
will  not  escape  it  if  he  does.  Under  such  circumstances 
he  can  only  avoid  the  preferential  sections  of  the  law  by 
having  a  friend  advance  the  money  and  release  the  claim 
for  him  without  diminishing  his  assets. 

§  39.  Statutory  admissions  by  debtor.  Under  the  last 
portion  of  the  section  defining  acts  of  bankruptcy  (27), 
that  of  admitting  inability  to  pay  debts  and  willingness  to 
be  adjudged  a  bankrupt  on  that  ground,  natural  persons 
are,  of  course,  included.  It  was  at  one  time  questioned 
whether  a  corporation  could  be  adjudged  a  bankrupt  on 
this  ground,  it  being  argued  that  to  permit  it  would  be 
tantamount  to  permitting  a  corporation  to  become  a  vol- 
untary bankrupt,  which  was  expressly  prohibited  by  the 
Act  (28).  This  contention  was,  however,  repudiated,  and 
it  is  now  well  settled  that  a  corporation,  as  well  as  a  nat- 
ural person,  may,  by  authority  of  its  board  of  directors, 
make  an  admission  in  writing  of  its  inability  to  pay  its 
debts  and  its  willingness  to  be  adjudged  a  bankrupt  on 
that  ground,  and  may  thereon  be  adjudged  a  bankrupt 
(29).  It  is  also  well  settled  that  insolvency  in  such  a  pro- 
ceeding, as  in  a  proceeding  based  on  the  debtor  having 
made  a  voluntary  assignment  (30),  is  immaterial.  These 
are  the  only  portions  under  which  solvency  is  immaterial. 
They  tend  to  show  that  bankruptcy  proceedings  may  take 
the  form  of  merely  distributing  estates,  a  proceeding  sim- 
ilar to  that  of  proceedings  in  courts  of  probate  where  es- 


(27)  Sec.  3a  (5). 

(28)  Sec,  4a. 

(29)  Re  Moench  &  Sons,  130  Fed.  685. 

(30)  West  Co.  V.  Lea,  174  U.  S.  590. 


240  BANKEUPTCY 

tates  of  deceased  persons  are  administered,  the  only  func- 
tion of  such  court  being  to  distribute  the  assets.  The 
bankruptcy  court  distributes  the  property,  and,  in  addi- 
tion to  what  is  done  in  a  probate  court,  may  grant  a  dis- 
charge from  the  unpaid  portion  of  the  debts. 

§40.  Trial  and  adjudication:  Voluntary  cases.  In 
voluntary  bankruptcy  cases  where  the  debtor  of  his  own 
volition  petitions  the  court  to  be  adjudicated  a  bankrupt, 
the  order  of  adjudication  is  entered  by  the  court  as  a 
matter  of  course.  No  issues  are  made  up  to  be  tried  by 
court  or  jury.  If  the  applicant  is  amenable  to  the  law 
and  the  court  has  jurisdiction,  no  objection  can  be  inter- 
posed by  creditors  or  others  which  would  prevent  the 
entry  of  the  order.  If  the  petitioner  is  insolvent,  his  elec- 
tion to  submit  himself  voluntarily  rather  than  wait  to 
have  his  creditors  compel  him  to  submit,  as  they  have 
the  power  to  do,  is  conclusive.  If,  on  the  other  hand,  he 
is  not  insolvent,  and  desires  to  discontinue  business  and 
to  make  a  distribution  of  the  proceeds  of  his  property 
among  his  creditors,  any  balance  remaining  after  they  are 
paid  to  be  paid  to  him,  he  is  made  his  own  judge  as  to  the 
expediency  and  advisability  of  applying  to  the  court  for 
assistance  in  accomplishing  this  purpose. 

§  41.  Same:  Involuntary  cases.  In  involuntary  cases, 
on  the  other  hand,  creditors  are  endeavoring  to  coerce  an 
unwilling  and  reluctant  debtor  to  give  up  his  property 
for  the  benefit  of  his  creditors.  The  basis  of  their  action 
rests  upon  some  act  which  the  debtor  has  done  which  is 
suflBcient  to  make  him  amenable  to  the  bankruptcy  law, 
and  it  carries  with  it,  as  do  all  bankruptcy  proceedings,  a 


BANKRUPTCY  241 

Blight  tinge  of  disgrace.  The  debtor,  to  save  his  business 
and  property  as  well  as  his  honor,  in  many  instances  de- 
fends against  the  proceeding.  His  defense  is  set  up  by 
what  is  known  as  an  answer.  The  case  is  then  at  issue 
and  a  hearing  before  a  judge— or  a  jury,  if  a  special  re- 
quest is  made  for  a  jury  (31)— is  necessary  to  determine 
the  issue  presented  by  the  petition  and  answer.  The  fol- 
lowing are  some  of  the  issues  that  may  be  passed  upon 
at  such  a  hearing. 

§  42.  Same:  Issues  presented  for  determination.  The 
debtor,  commonly  called  the  respondent,  at  such  a  hear- 
ing may  claim  that  he  is  not  engaged  in  a  business  or  oc- 
cupation of  such  a  character  as  to  make  him  amenable  to 
the  Act,  or  that  he  does  not  owe  sufficient  debts  to  entitle 
the  petitioners  to  proceed  against  him.  He  may  deny 
that  he  committed  the  act  of  bankruptcy  alleged  in  the 
petition.  He  may  assert  that  the  petitioning  creditors 
or  some  of  them  have  no  claim  against  him ;  or  that  their 
claims,  or  some  of  them,  are  not  provable— a  prerequisite 
to  entitle  them  to  be  petitioning  creditors;  or  that  the 
amount  of  their  claims  is  insufficient  to  sustain  their  ac- 
tion. He  may  show  that  he  did  not  have  his  domicile,  resi- 
dence, or  his  principal  place  of  business  in  the  territorial 
jurisdiction  of  the  court  for  six  months,  or  the  greater 
part  thereof,  immediately  preceding  the  filing  of  the  peti- 
tion. If  the  issue  or  issues  tried  are  decided  for  the  peti- 
tioners, the  court  enters  an  order  of  adjudication;  and 
from  that  time  the  bankrupt  and  his  property  are  to  be 
dealt  with  in  accordance  with  the  provisions  of  the  statute. 

(31)     Sec.  19. 


242  BANKRUPTCY 


CHAPTER  IV. 
TRUSTEE  AND  PROPERTY. 

Section  1.     The  Trustee. 

§  43.  Provisional  officer:  Receiver.  After  the  filing 
of  a  petition,  whether  voluntary  or  involuntary,  and  be- 
fore an  adjudication,  or  afterwards  and  before  the  elec- 
tion of  a  trustee,  the  bankruptcy  court  may  appoint,  at 
the  instigation  of  a  creditor,  a  receiver  to  conserve  the 
property  and  guard  the  interests  of  creditors  in  the  in- 
terim between  his  appointment  and  the  election  of  a  trus- 
tee. Were  it  not  for  some  such  provision,  placing  the 
property  in  the  custody  of  the  court  by  its  receiver,  es- 
tates would  deteriorate,  be  wasted,  or  lost.  Such  a  pro- 
visional officer  is  necessary  to  bridge  the  gap  between  the 
filing  of  the  petition  and  the  election  of  a  trustee.  His 
duties  may  extend  further  than  a  mere  preservation  of 
the  property,  as  where  perishable  articles  are  found  in 
the  estate,  or  raw  or  unfinished  materials  in  the  course  of 
manufacture  exist  at  the  time  he  takes  possession.  It  is 
usual  in  such  cases  for  the  court  to  authorize  him  to  sell 
the  perishable  property,  and  to  continue  the  business  suf- 
ficiently long  to  use  up  the  raw  material  or  to  finish  up  any 
unfinished  article  of  commerce  (1).    The  receiver  is  en- 

(1)     Sec.  2  (5). 


BANKRUPTCY  243 

titled  to  compensation  for  such  services  whicli  is  usually 
regulated  by  the  compensation  given  to  a  trustee. 

The  receiver  is  put  in  possession  of  the  property  merely 
as  a  temporary  officer.  In  many  instances,  where  the 
court  denies  the  application  of  the  petitioning  creditors 
and  dismisses  their  petition,  the  receiver  is  the  only  officer 
who  takes  possession  of  the  property.  If  the  court  re- 
fuses the  petition,  the  receiver  turns  the  property  back  to 
the  alleged  bankrupt  and  the  case  is  ended.  In  other  in- 
stances, he  merely  holds  the  property  until  the  debtor 
offers  a  composition  to  his  creditors,  i.  e.,  a  certain  per- 
centage of  all  claims  outstanding.  If  this  offer  of  settle- 
ment is  accepted  by  the  creditors,  the  property  is  turned 
back  to  the  bankrupt. 

§  44.  Election  and  qualification  of  trustee.  Tlie  perma- 
nent court  officer  is  the  trustee.  His  position  is  only  pos- 
sible in  cases  where  there  has  been  an  adjudication.  After 
the  adjudication  the  creditors  hold  a  meeting  and  elect  a 
trustee.  The  persons  entitled  to  vote  are  those  who  hold 
provable  claims  against  the  bankrupt  (2).  The  majority 
in  number  and  amount  of  creditors  is  necessary  to  elect. 
In  case  of  a  failure  of  the  creditors  to  elect,  it  becomes  the 
court's  duty  to  appoint  a  trustee.  A  creditor,  in  order 
to  be  entitled  to  participate  in  the  election,  must  show  his 
qualification  by  a  sworn  statement  of  the  nature  and 
amount  of  his  claim.  This  he  does  by  presenting  what  is 
called  a  proof  of  claim.  This  same  proof  is  subsequently 
made  the  basis  for  the  payment  of  dividends.  In  case  the 
creditor  does  not  desire  to  or  cannot  attend  personally, 

(2)     Sec.  44a. 


244  BANKEUPTCY 

he  may  authorize  any  person  to  act  as  his  attorney  by  giv- 
ing to  such  person  a  power  of  attorney.  This  attorney 
may  do  whatever  the  creditor  might  if  he  were  present. 

Before  the  trustee  enters  upon  the  performance  of  his 
duties  he  is  required  to  qualify  for  his  office  by  entering 
into  a  bond  to  the  United  States,  with  sureties  to  be  ap- 
proved by  the  court.  The  bond  is  conditioned  for  the 
faithful  performance  of  the  official  duties  (3).  The  credi- 
tors fix  the  amount  of  the  bond,  or,  in  case  they  fail  to  do 
so,  the  duty  devolves  upon  the  court  (4). 

§45.  Duties  of  trustee:  To  tal^e  possession  of  prop- 
erty. After  the  trustee  has  been  elected  and  qualified 
by  giving  his  bond,  he  is  in  a  position  to  assume  the  duties 
of  his  office.  It  devolves  upon  him  as  trustee  to  take  en- 
tire charge  of  the  bankrupt's  property,  be  its  custodian, 
and  care  for  it  until  sold.  If  a  receiver  has  been  ap- 
pointed in  the  proceeding,  who  is  in  charge  of  the  prop- 
erty at  the  time  of  the  trustee's  qualification,  he  receives 
possession  from  him.  If  not  and  the  bankrupt  is  still  in 
control  of  the  property,  the  trustee  succeeds  to  his  pos- 
session. A  discussion  of  the  different  kinds  of  property 
that  the  trustee  takes  appears  below  (5). 

§46.  Same:  To  set  apart  bankrupt's  exemptions.  The 
laws  of  the  various  states  provide,  either  that  certain 
specific  property  named  or  else  property  valued  at  a 
given  amount  shall  be  protected,  at  all  events,  from  the 
claims  of  creditors.    Such  laws  are  known  as  exemption 


(3)  Sec.  50b. 

(4)  Sec.  50c. 

(5)  See  §§  53-63,  below. 


BANKKUPTCY  245 

laws  and  the  right  thus  to  hold  property  is  known  as  the 
right  of  exemption.  The  bankruptcy  law  observes  the 
various  state  laws  on  this  subject,  where  they  are  not  in 
conflict  with  it  (6).  Title  to  exempt  property  does  not 
pass  to  the  trustee,  as  will  be  seen  later  (§64).  If  he  takes 
possession  of  it  where  the  statute  makes  certain  specific 
property  exempt,  as  the  homestead,  for  example,  it  is  his 
duty  to  deliver  this  back  to  the  bankrupt.  In  states  where 
the  bankrupt  may  claim  any  property  he  has,  valued  at 
not  to  exceed  a  fixed  amount,  it  is  the  trustee's  duty  to  set 
apart  for  the  bankrupt  the  property  he  chooses  to  take  as 
his  exemption  (7). 

§  47.    Same:    To  bring  suit  to  recover  property  and 

assets.  In  the  course  of  the  administration  of  a  bankrupt 
estate,  it  becomes  a  part  of  the  trustee's  work  to  make  in- 
vestigation into  the  affairs  of  the  bankrupt  to  ascertain 
what  property  he  has  concealed;  what  fraudulent  con- 
veyances, preferences,  and  transfers,  void  against  credi- 
tors by  the  laws  of  the  state,  he  has  made ;  and  what  liens 
were  affixed  to  his  property  by  legal  proceedings.  A  dis- 
cussion of  the  time  limit  required  by  the  Act  to  make  such 
interests  available  to  the  trustee,  the  nature  of  the  inter- 
ests, and  the  sources  of  the  trustee's  title  to  them  is  given 
below  (8).  He  is  assisted  in  this  undertaking  by  the 
court,  which  has  power  to  compel  the  bankrupt  to  testify 
as  to  the  present  and  past  condition  of  his  affairs,  as  to 
his  dealings  with  his  creditors  and  others,  and  as  to  the 


(6)  Sec.  6a. 

(7)  Sec.  47a  (11). 

(8)  See  §§  67-82. 


246  BANKEUPTCY 

amount,  kind,  and  wliereabouts  of  his  property  (9).  Other 
witnesses  may  also  be  subpoenaed  to  testify  (10).  In  case 
he  makes  a  discovery  of  interests  of  the  character  men- 
tioned, it  devolves  upon  him  to  institute  the  proper  legal 
proceedings,  or  to  take  whatever  steps  are  necessary  to 
realize  on  these  interests.  He  is  also  the  officer  to  collect 
any  outstanding  accounts  receivable. 

§  48.  Same:  To  reduce  all  property  to  money  and  pay 
dividends.  The  ultimate  object  of  the  entire  proceeding 
for  the  creditors  is  to  have  the  money,  realized  by  the 
trustee  from  whatever  source,  distributed  pro  rata  among 
them  as  dividends  (11).  To  do  this  it  is  necessary  for 
him  to  sell  the  property  or  assets,  and  to  reduce  to  money 
any  interests  he  has  as  trustee  (12).  This  he  is  obliged 
to  deposit  in  a  bank  or  depository  designated  by  the 
court  (13),  and  he  must  account  for  all  interest  received 
on  money  deposited  (14). 

§  49.  Same:  To  keep  accounts,  make  reports,  and  give 
information.  In  addition  to  the  duty  of  collecting  the 
property  and  assets,  reducing  them  to  money  and  dis- 
tributing it  among  creditors,  the  trustee  is  obliged,  by  the 
provisions  of  the  Act,  to  keep  accounts  showing  all  money 
received  and  from  what  sources,  and  all  amounts  ex- 
pended and  for  what  purposes  (15) ;  to  furnish  such  in- 
formation concerning  the  estate  as  may  be  required  by 


(t» 

Sec.  47a  (9). 

(10) 

Sec.  41a. 

(11) 

Sec.  47a  (9). 

(12) 

Sec.  47a  (2). 

(13) 

Sec.  47a  (3). 

(14) 

Sec.  47a  (6). 

(15) 

Sec.  47a  (6). 

BANKRUPTCY  247 

parties  in  interest  (16) ;  to  report  to  the  court  from  time 
to  time  the  condition  of  the  estate  and  the  amount  of 
money  on  hand  (17) ;  and  to  make  final  reports  and  file 
final  accounts  (18). 

§  50.  Compensation  of  trustee.  The  law  fixes  a  scale 
of  charges  the  trustee  may  make.  It  is  based  on  the 
amount  of  money  disbursed  by  him.  Thus  he  receives  not 
to  exceed  six  per  cent,  on  the  first  $500  or  less ;  four  per 
cent,  on  moneys  in  excess  of  $500 ;  two  per  cent,  on  moneys 
in  excess  of  $1500  and  less  than  $10,000;  and  one  per 
cent,  on  moneys  in  excess  of  $10,000  (19).  In  small  es- 
tates the  compensation  is  frequently  very  small  and  in 
no  manner  commensurate  with  the  work  done.  In  large 
estates,  on  the  other  hand,  a  very  reasonable  compensa- 
tion is  provided.  One  of  the  serious  defects  of  the  Act 
of  1867  rested  in  its  lax  methods  of  compensating  the 
ofiicers  of  the  court.  Too  much  latitude  was  allowed  the 
judges  in  awarding  fees  to  assignees  in  bankruptcy.  This 
Act  has  not  met  with  severe  criticism  on  this  ground.  The 
opportunities,  however,  for  large  fees  for  attorneys  for 
the  trustee  still  prevail  and  are  at  times  abused. 

Section  2.   Title  and  Property  Passing  to  T!rustee  from 

Bankrupt. 
§  51.    In  general.    In  considering  what  property  passes 
to  the  trustee,  attention  is  again  directed  to  the  fact  that 
natural  persons,  no  matter  in  what  business  engaged  nor 


(16)  Sec.  47a   (5). 

(17)  Sec.  47a  (9). 

(18)  Sec.  47a  (8). 

(19)  Sec.  48a. 

Vol,  X— 18 


248  BANKRUPTCY 

what  their  occupations,  may  become  banprupts;  and  that 
all  natural  persons,  except  wage  earners  or  those  en- 
gaged in  farming  or  the  tillage  of  the  soil,  and  many 
artificial  persons  may  be  compelled  to  be  bankrupts.  With 
persons  of  so  many  occupations  subject  to  the  Act,  the 
character  of  the  property  owned  and  thus  involved  in 
bankruptcy  becomes  as  widely  diversified  as  the  prop- 
erty interests  man  cherishes. 

As  bankruptcy  proceedings  are  for  the  benefit  of  the 
creditors;  as  they,  on  the  one  hand,  are  primarily  in- 
terested in  having  everything  owned  by  the  bankrupt, 
from  which  value  can  be  realized,  pass  to  the  trustee; 
and  as  the  bankrupt,  on  the  other  hand,  is  desirous  of 
retaining  as  much  of  his  property  as  is  consonant  with 
reason  and  the  provisions  of  the  law;  conflicts  have  arisen 
over  what  property  interests  pass.  Then  the  question 
as  to  when  the  title  passes,  whether  at  the  time  the 
petition  is  filed  or  at  the  time  of  the  adjudication,  has  also 
arisen.  The  source  of  the  trustee's  title  to  the  interests 
that  pass,  whether  it  is  derived  from  the  bankrupt,  from 
the  creditors,  or  from  the  express  provisions  of  the  law 
has  been  made  of  peculiar  importance  by  certain  decisions 
of  the  courts. 

In  this  Section  the  interests  passing  from  the  bankrupt, 
and  the  time  at  which  they  pass  will  be  discussed.  In  the 
two  following  Sections  rights  derived  by  the  trustee  from 
other  sources  will  be  considered. 

§  52.  Time  and  maimer  of  vesting  title.  Entirely  apart 
from  the  kinds  of  property  the  trustee  takes  and  the 
sources  of  his  title  is  the  manner  in  which  title  is  vested 


BANKRUPTCY  249 

in  him  and  the  time  at  which  it  vests.  Under  the  act  of 
1867  it  was  necessaiy  for  the  bankrupt,  before  the  trustee 
acquired  any  title,  to  make  a  deed  of  conveyance  of  his 
property.  Under  the  present  Act  the  title  to  all  the  rights 
and  interests  the  trustee  takes,  from  whatever  source, 
vests  by  operation  of  law  (20)  without  any  transfer  by 
deed  or  other  instrument,  just  as  an  heir  at  law  takes 
title  to  lands  of  his  ancestor.  The  title  vests  in  him  at 
the  time  of  his  appointment  and  qualification,  but  re- 
verts and  dates  back  to  the  time  of  the  adjudication.  The 
quantum  of  property  is  determined  and  delimited  by  the 
date  of  the  petition,  and  if,  between  that  time  and  the 
adjudication,  there  has  been  an  increase  of  such  prop- 
erty, he  takes  the  increment  as  a  portion  of  the  estate  (21). 
But  any  property  the  bankrupt  acquired  after  the  filing 
of  the  petition,  entirely  independent  of  what  he  had  be- 
fore, belongs  to  him.  Thus,  property  earned  by  him  after 
that  time  cannot  be  taken  by  the  trustee.  But  property 
given  to  him  by  the  will  of  one  who  died  at  8 :  45  A.  M. 
when  the  petition  was  not  filed  until  2 :  30  P.  M.  of  the 
same  day  passes  to  the  trustee  (22).  The  line  of  cleavage 
between  what  property  belongs  to  the  bankrupt  and  what 
to  the  trustee  is  fixed  by  the  date  of  filing  the  petition. 
Between  this  time  and  the  time  the  title  is  vested  in  the 
trustee  it  remains  in  the  bankrupt,  and  is  thus  in  danger 
of  being  transferred  by  him,  or  of  being  wasted  or  lost. 
It  is  to  prevent  such  transfer  or  loss  during  the  interim 


(20)  Sec.  70a. 

(21)  In  re  Pearl,  4  Am.  B.  R.  578. 

(22)  Re  McKenna,  137  Fed.  611. 


250  BANKRUPTCY 

that  a  receiver  is  put  in  possession  of  it  as  stated  in 
§  43,  above. 

§  53.  Documents.  Section  70a  is  the  important  section 
of  the  Act  defining  the  different  interests  that  pass  to  the 
tmstee.  The  first  subdivision  of  this  section  provides 
that  the  trustee  shall  be  vested  with  the  title  of  the  bank- 
rupt to  all  documents  relating  to  his  property.  The  act 
defines  "document"  as  any  book,  deed,  or  instrument  in 
writing  (23).  The  trustee  is,  therefore,  vested  by  opera- 
tion of  law  not  merely  with  the  right  to  inspect  the  bank- 
rupt's books,  but  with  their  title.  He  also  takes  any  and 
all  deeds,  promissory  notes,  bills  of  exchange,  bonds,  se- 
curities, checks,  contracts,  bank  books,  and  all  papers 
relating  to  his  business  (24). 

§  54.  Patents,  patent-rights,  copyrights,  and  trade- 
marks. The  trustee  is  vested  with  the  title  of  all  patents, 
patent  rights,  copyrights,  and  trademarks  the  bankrupt 
owned  at  the  time  the  petition  was  filed  (25).  This  does 
not  entitle  the  trustee  to  the  right  to  have  mere  applica- 
tions for  patents  on  which  no  patent  right  has  yet  been 
issued.  The  applicant  has  no  interest  which  can  be  called 
a  patent  right  before  its  issuance,  although  he  may  have 
the  title  to  an  invention  which  in  his  belief  is  patent- 
able (26). 

§  55.  Powers.  The  statute  says  the  trustee  shall  be 
vested  with  all  the  powers  which  the  bankrupt  might 
have  exercised  for  his  own  benefit,  but  not  those  which 


(23)  Sec.  la   (13). 

(24)  In  re  Iless,  136  Fed.  988. 

(25)  Sec.  70a  (2). 

(26)  In  re  Dann,  120  Fed.  405. 


BANKRUPTCY  251 

he  might  have  exercised  for  some  other  person  (27).  No 
decison  has  defined  what  is  meant  by  a  power  as  used  in 
the  Act.  The  courts  have  said  that  it  did  not  mean  a  power 
to  realize  on  a  liquor  license  (28),  and  that  a  husband's 
right  in  his  wife's  real  estate  is  not  a  power  (29).  The 
powers  recognized  by  the  common  law  of  which  creditors 
could  avail  themselves  were  those  that  debtors  might 
have  exercised  in  their  own  favor  by  charging  certain 
lands  with  liens,  but  which  they  exercised  in  favor  of  an- 
other without  receiving  any  compensation.  The  property 
affected  by  a  power  exercised  for  the  purpose  of  making 
a  gift  could  be  taken  by  creditors  as  a  voluntary  con- 
veyance to  defraud  them  (30).  If,  however,  the  person 
entitled  to  exercise  the  power  had  never  done  so,  creditors 
had  no  way  to  compel  him  to  exercise  it  so  that  they 
could  acquire  the  property  affected  by  the  exercise  (31). 
It  would  seem,  however,  that  by  virtue  of  this  provision 
of  the  Act,  giving  to  the  trustee  all  powers  which  the  bank- 
rupt could  exercise  for  his  own  benefit,  the  bankrupt  could 
be  compelled  to  exercise  the  power  in  favor  of  the  trustee. 
§  56.  Fraudulent  conveyances.  The  act  says  that  the 
trustee  shall  be  vested  with  the  title  of  the  bankrupt  to 
all  property  transferred  by  him  in  fraud  of  creditors  (32). 
As  stated  in  the  discussion  on  fraudulent  conveyances 
(§§  62,  67-68,  below),  the  bankrupt  has  no  title  to  property 
he  has  conveyed  in  fraud  of  creditors  as  between  himself 


(27) 

Sec.  70a  (3). 

(28) 

Fisher  v.  Cushman,  103  Fed.  860,  867. 

(29) 

Hesseltine  v.  Prince,  95  Fed.  802. 

(30) 

Gilman  v.  Bell,  99  111.  144. 

(31) 

Holmes  v.  Cogbill,  7  Vesey,  498. 

(82) 

Sec.  70a  (4). 

252  BANKRUPTCY 

and  his  transferee.  As  to  creditors,  however,  the  title 
can  be  reacquired  and  sold  to  pay  their  claims.  It  is  the 
title  of  the  creditors,  their  right  to  revest  the  title  in  the 
bankrupt  for  the  purpose  of  paying  debts  merely,  that  the 
trustee  takes.  A  completer  discussion  of  the  source  of 
the  trustee 's  title  to  property  fraudulently  transferred  is 
given  below  (§§62,  67-68). 

§  57.  Transferable  and  leviable  property.  By  far  the 
most  comprehensive  part  of  section  70a,  the  principal 
section  defining  what  property  the  trustee  takes,  is  the 
portion  which  gives  to  him  the  title  to  all  the  bankrupt's 
transferable  and  leviable  property  (33) ;  the  Act  says, 
''property  which  prior  to  the  filing  of  the  petition  (the 
bankrupt)  could  by  any  means  have  transferred  or  which 
might  have  been  levied  upon  and  sold  under  judicial 
process  against  him."  This  includes  almost  everything 
which  the  bankrupt  actually  owned  and  from  which  the 
trustee  could  realize  value  for  the  benefit  of  the  creditors. 
It  is  also  thought  to  include  property  which  he  has  made 
the  subject  of  a  transfer,  voidable  as  against  some  per- 
sons, but  which  he  no  longer  owned.  As  creditors  may 
disregard  a  transfer  made  to  defraud  them,  and,  in  law, 
consider  the  bankrupt  as  the  owner,  levy  on  such  prop- 
erty, and  sell  it  for  their  benefit,  fraudulent  conveyances 
are  also  thought  to  pass  to  the  trustee  by  virtue  of  this 
provision.  Although  such  property  is  no  longer  trans- 
ferable by  the  bankrupt,  it  may  be  levied  on  and  sold  by 
creditors  under  judicial  process  against  him,  but  it  was 
not  the  bankrupt's  property  at  the  time  of  the  filing  of 


<33)     Sec.  70a  (5). 


BANKRUPTCY  253 

the  petition  and  section  70a  does  not  purport  to  give  the 
trustee  anything  except  what  the  bankrupt  owned  or  to 
which  he  had  title.  The  real  source  of  the  trustee's  title 
to  fraudulent  conveyances  will  be  more  fully  discussed 
later  (§§67-68). 

§  58.    Same:    Illustrations.    Under  this  provision  all 
tangible  property,  whether  real  or  personal,  of  which 
the  bankrupt  is  in  possession  at  the  time  of  the  filing 
of  the  petition,  and  also  all  that  is  in  possession  of  an- 
other as  trustee  (34)  or  bailee  for  the  bankrupt,  whether 
scheduled  or  not,  passes  to  the  trustee  in  bankruptcy. 
The  husband's  marital  interest  in  his  wife's  land,  con- 
sisting of  his  right  to  use  and  enjoy  it  during  their  joint 
lives,  regardless  of  the  birth  of  issue,  passes  to  the  trus- 
tee (35).    A  dower  interest  of  one  spouse  (dower  being 
substituted  for  curtesy  by  the  statutes  of  some  states) 
in  lands  of  the  other,  who  is  dead,  passes  to  the  trustee ; 
but  the  interest  of  either  spouse  before  the  other's  death, 
being  a  mere  possibility  dependent  upon  whether  the 
bankrupt  spouse  outlives  the  other,  does  not  pass  (36). 
From  the  foregoing  illustrations  it  follows  that  lands 
the  bankrupt  has  leased  to  another  and  from  which  he  is 
collecting  rent,  and  also  lands  which  he  holds  under  a 
lease  from  another,  become  the  trustee's  property.    In 
the  latter  instance,  the  trustee  may  find  the  rent  all  paid, 
and,  if  not  paid,  past  due,  so  that  the  landlord  holds  a 
provable  claim.    In  either  case  he  would  be  entitled  to  the 
lease  as  an  asset  free  from  any  obligation  to  pay  rent. 

(34)  IB  re  Jersey  Packing  Co.,  138  Fed.  625,  627. 

(35)  In  re  Marquette,  103  Fed.  777  (stating  common  law  rule). 

(36)  In  re  Russell,  13  A.  B.  R.  24. 


254  BANKRUPTCY 

Where,  however,  the  rent  has  neither  been  paid  nor  ma- 
tured into  a  provable  claim  and  its  payment  would  be  a 
burden  upon  the  estate,  he  may  elect  to  abandon  his  in- 
terest in  the  leased  property  (37),  whereupon  it  again 
becomes  the  property  of  the  bankrupt,  who  may  be  made 
to  pay  the  rent  coming  due  after  bankruptcy  and  to  per- 
form the  contract  of  lease,  although  he  has  procured  a 
discharge.  See  §  96,  below.  All  such  interests  in  land 
pass,  because  they  are  transferable  by  the  bankrupt  or 
because  they  might  have  been  levied  upon  and  sold  under 
judicial  process  against  him. 

§  59.  Choses  in  action.  It  was  stated  above  (§53)  that 
the  trustee  was  vested  with  the  title  to  all  promissory 
notes,  bills  of  exchange,  bonds,  securities,  checks,  con- 
tracts, and  bank  books.  He  is  not  merely  vested  with  the 
title  to  the  document^  but  with  the  beneficial  interest  to 
be  derived  from  its  enforcement.  He  may  realize  upon 
all  stocks,  bonds,  commercial  paper,  mortgages,  and  ac- 
counts collectible,  including  bank  accounts.  He  also  takes 
all  merchandise  and  stock  in  trade.  The  foregoing  are 
clear  instances  of  property  that  passes  under  the  trans- 
ferable and  leviable  provision,  there  being  little  question 
but  that  the  interests  are  transferable  by  the  bankrupt. 
It  has  been  held  that  a  bankrupt's  seat  in  a  stock  exchange 
passes,  although  by  the  rules  of  the  exchange  the  pur- 
chaser may  be  refused  membership.  The  bankrupt  has 
the  power  to  surrender  his  interest  in  his  membership  to 
another,  the  latter  taking  it  subject  to  the  risk  of  pro- 
curing his  election  by  the  exchange.    The  courts  take  the 


(37)     Watson  v.  Merrill,  136  Fed.  359. 


BANKRUPTCY  255 

view  that  this  membership,  having  value  and  being  ca- 
pable of  transfer  by  some  means,  belongs  to  the  trus- 
tee (38).  Another  peculiar  interest  that  the  courts  have 
held  to  be  transferable  by  some  means  is  the  interest  of 
the  holder  of  a  license  to  sell  liquor,  even  though  the 
transferee  of  such  a  privilege  may  be  required  to  procure 
the  assent  of  some  official  body  before  being  entitled  to 
exercise  it  (39). 

§  60.  Life  insurance  policies.  By  the  laws  of  many 
states  life  insurance  policies  are  exempt  from  creditors, 
and  under  the  Act  this  exemption  is  preserved  to  the 
bankrupt  (40).  In  such  policies  exempt  by  state  law, 
the  trustee  takes  no  interest.  Furthermore  he  takes  no 
interest  in  policies  taken  out  on  the  life  of  the  bankrupt, 
payable  absolutely  to  another  or  assigned  to  another 
(41).  Policies  of  life  insurance  may  be  made  payable  in 
all  events  to  the  bankrupt  or  his  estate.  Such  policies,  if 
they  have  value,  pass  to  the  trustee.  They  may  be  made 
payable  to  a  third  person,  as  wife,  child,  or  relative ;  and, 
if  such  third  person  die  before  the  insured,  then  to  be 
payable  to  the  latter 's  estate.  If  either  the  insured  or 
the  beneficiary  becomes  bankrupt,  the  trustee  takes  his 
interest  (42).  Likewise,  if  the  policy  is  payable  abso- 
lutely to  a  third  person  and  he  becomes  bankrupt,  the 
trustee  takes  the  interest  (43).  Similarly,  where  a  policy 
is  made  payable  to  the  insured  at  the  end  of  a  fixed  period 


(38) 

Page  V.  Edmunds,  187  IT.  S.  596. 

(39) 

In  re  Becker,  98  Fed.  407. 

(40) 

Sec.  6a ;  Holden  v.  Stratton,  198  U.  S.  202. 

(41) 

In  re  Steele,  98  Fed.  78. 

(42) 

In  re  Welling,  113  Fed.  189. 

(43) 

In  re  Steele,  98  Fed.  78. 

256  BANKRUPTCY 

of  time,  but,  if  insured  should  die  before  tbat  time,  then 
to  some  third  person,  the  trustee  takes  the  interest  of  the 
insured  (44).  It  passes,  of  course,  subject  to  the  rights 
of  the  third  person.  Should  the  third  person  become 
bankrupt,  his  trustee  would  be  entitled  to  his  interest  in 
the  policy.  But  in  such  a  case,  where  the  insured  has 
designated  some  third  person  beneficiary  but  has  re- 
served the  right  to  change  the  beneficiary  at  any  time, 
he  being  capable  at  the  time  the  petition  was  filed  of 
transferring  the  beneficial  interest  to  himself,  the  trustee 
takes  the  policy  free  from  the  interest  of  the  beneficiary 
(45). 

The  interests  in  life  insurance  policies  always  pass, 
even  in  the  states  that  do  not  make  them  exempt,  subject 
to  the  right  of  the  insured  bankrupt  to  pay  the  trustee  the 
surrender  value,  if  the  policy  has  such  a  value,  and  thus 
redeem  it  from  the  creditors.  This  he  is  obligated  to  do 
within  thirty  days  after  the  insurance  company  has  stated 
to  the  trustee  its  cash  surrender  value  (46).  In  states 
where  such  policies  are  exempt,  such  redemption  is,  of 
course,  not  necessary. 

§  61.  Rights  of  action.  The  Act  says  that  the  trustee 
shall  be  vested  with  the  title  of  the  bankrupt  to  all  rights 
of  action  arising  upon  contracts,  or  from  the  unlawful 
taking  or  detention  of,  or  injury  to,  his  property  (47).  As 
stated  above  (§59),  the  right  to  bring  suit  on  commercial 


(44)  In  re  Boardman,  103  Fed.  783. 

(45)  Foxhever  v.  Order  of  Red  Cross,  24  Ohio  Circuit,  56  (not  a 
bankruptcy  case). 

(46)  Sec.  70a  (5). 

(47)  Sec.  70a  (6). 


BANKRUPTCY  257 

paper,  bonds,  and  open  accounts  passes  to  the  trustee. 
This  portion  of  the  Act  gives  the  trustee  the  right  to  sue 
upon  contracts  between  the  bankrupt  and  third  persons 
when  broken  by  the  latter,  by  virtue  of  which  breaches 
the  bankrupt  is  entitled  to  damages.  An  instance  arose 
where  a  coal  mining  company  contracted  to  deliver  to  the 
bankrupt  5,000  tons  of  coal  per  month  for  a  year.  After 
deliveries  became  due,  the  company  refused  to  carry  out 
the  contract,  and  the  petition  was  filed  after  the  time  of 
the  performance  of  the  contract  had  expired.  In  such  a 
case  the  trustee  may  sue  the  company  for  the  damages. 
The  sum  to  be  recovered  in  such  a  case  is  not  the  fixed 
sum  usual  in  cases  of  notes,  bonds,  or  accounts,  but  con- 
sists of  an  unliquidated  sum  to  be  fixed  by  a  jury  or  court, 
the  amount  depending  upon  general  market  conditions  at 
the  time  the  contract  should  have  been  performed.  It 
has  also  been  held  that  the  trustee  is  vested  with  the  right 
to  sue  for  usurious  interest.  This  was  upon  the  ground, 
however,  that  the  bankrupt  could  have  transferred  the 
right  to  sue  to  another  by  the  law  of  the  state  where  the 
usurious  contract  was  made  (48).  It  thus  passed  to  the 
trustee  rather  under  the  leviable  and  transferable  por- 
tion of  section  70a  than  under  this  portion  of  it.  An  in- 
stance where  a  trustee  was  permitted  to  sue  for  injury 
to  the  bankrupt's  property  is  given  in  a  decision  (49) 
where  he  maintained  an  action  against  the  bankrupt's 
landlord  for  negligently  allowing  water  to  do  injury  to 
the  premises  the  bankrupt  had  leased  from  him.    The 


(48)  First  National  Bank  v.  Lasater,  196  U.  S.  115. 

(49)  In  re  Becher  Bros.,  139  Fed.  366. 


258  BANKRUPTCY 

damages  the  bankrupt  could  have  recovered  had  the  bank- 
ruptcy not  intervened,  the  trustee  has  the  right  to  recover. 
§  62.  Source  of  trustee's  title.  The  trustee,  by  the  ex- 
press language  of  the  Act,  is  vested  with  the  bankrupt's 
title  to  all  the  interests  so  far  discussed,  which  he  takes 
under  this  section  of  the  Act.  This  section  (50)  may  even 
be  construed  to  give  to  the  trustee  the  bankrupt's  title  to 
property  conveyed  in  fraud  of  creditors,  as  intimated  in 
§  57,  above.  If  the  bankrupt  had  title  to  such  property, 
no  difficulty  could  be  experienced.  It  seems  the  better 
view  would  be  that  section  70a  purported  to  pass  to  the 
trustee  only  property  the  title  to  which  was  in  the  bank 
rupt  at  the  time  of  the  filing  of  the  petition.  This  would 
appear  to  be  the  intent  gathered  from  a  reading  of  the 
entire  section.  It  will  be  fully  shown  below  (§§67-68) 
that  it  is  not  necessary  to  trace  the  trustee's  title  to 
fraudulent  conveyances  to  the  bankrupt  as  a  source,  but 
that  the  trustee's  real  source  of  title  to  such  property, 
and  to  property  that  is  the  subject  of  a  transfer  void 
by  the  law  of  the  state  for  failure  to  comply  with  its 
recording  laws,  is  the  bankrupt's  creditors.  As  to  any 
other  property  vested  in  the  trustee  by  this  section,  he 
derives  his  title  from  the  bankrupt.  He  takes  it  by  reason 
of  the  fact  that  the  bankrupt  had  it  as  his  own,  and  as- 
serted or  could  assert  a  beneficial  interest  in  it,  whether 
in  his  possession  or  not,  or  whether  the  title  was  in  him  or 
another  for  him.  Such  an  actual  title  is  clearly  distin- 
guishable from  the  entire  absence  of  title  in  the  bankrupt 
occurring  in  fraudulent  conveyances.    In  such  convey- 


(50)     Sec.  70a. 


BANKEUPTCY  259 

ances  he  neither  has  an  actual  title,  nor  is  he  in  a  position 
to  assert  any  interest  in  them.  Because  of  the  entire 
absence  in  the  bankrupt  of  any  title  or  interest,  it  would 
seem  this  section  could  not  be  relied  upon  to  transfer  to 
the  trustee  any  title  to  fraudulent  conveyances,  as  it  in 
terms  only  conveys  the  bankrupt's  title. 

§  63.  Property  passes  to  trustee  just  as  bankrupt  held 
it.  The  general  rule  is  that  the  trustee  takes  whatever 
interest  the  bankrupt  had.  Thus,  if  the  latter 's  land  is 
subject  to  a  mortgage,  a  vender's  lien,  or  a  tax  or  me- 
chanic's lien,  the  trustee  takes  it  subject  to  that  incum- 
brance. Furthermore,  if  the  husband,  seized  of  real  es- 
tate, becomes  bankrupt,  the  trustee  takes  the  land  sub- 
ject to  the  right  of  the  wife  to  have  dower  in  case  the 
husband  dies  before  she  does  (51);  and,  similarly,  the 
husband  keeps  his  right  to  curtesy  in  the  land  of  the  wife, 
when  she  becomes  bankrupt  and  dies  before  he  does. 
The  rule  is  the  same  with  reference  to  personal  property. 
Thus,  if  a  bankrupt  makes  his  promissory  note  for  five 
thousand  dollars  and  delivers  to  the  payee  chattels  in 
pledge  to  secure  its  payment,  the  trustee  takes  the  chat- 
tels subject  to  the  right  of  the  pledgee  to  retain  possession 
until  the  note  has  been  paid  (52),  or  to  sell  the  chattels 
to  make  the  amount  thereof  from  the  proceeds.  If  the 
proceeds  realized  on  a  sale  of  the  property  pledged  ex- 
ceed his  claim,  the  trustee  is  entitled  to  the  excess.  The 
general  principle  is  well  illustrated  by  a  case  where  the 
bankrupt  had  purchased  property  at  an  execution  sale. 


(51)  In  re  McKenzie,  142  Fed.  383. 

(52)  Yeatman  v.  Savings'  Institution,  95  U.  S.  764, 


260  BANKEUPTCY 

By  the  state  law,  sales  on  execution  were  subject  to  re- 
demption for  a  fixed  period  after  the  sale,  by  the  party 
whose  property  was  sold  or  by  the  creditors  who  had  an 
unsatisfied  execution  against  him.  The  court  held  that  the 
trustee  of  the  execution  purchaser  took  the  property,  sub- 
ject to  the  right  of  an  execution  creditor  of  the  debtor 
whose  property  was  involved  to  redeem  from  the  sale  (53). 

The  rule  here  stated  is,  however,  subject  to  the  limita- 
tion hereafter  to  be  discussed,  that  the  trustee,  in  certain 
kinds  of  conveyances  fraudulent  as  to  creditors  at  com- 
mon law  or  under  the  Act,  does  not  take  subject  to  the 
lien  of  the  transferees,  and  in  such  instances  he  does  not 
take  the  proj>erty  in  the  plight  in  which  it  was  found  at 
the  time  of  the  bankruptcy. 

From  the  preceding  illustrations  it  appears  that  the 
trustee  takes  any  title  or  interest,  which  he  derives  directly 
from  the  bankrupt,  subject  to  any  valid  incumbrance, 
charge,  or  equity  the  latter  has  placed  upon  it,  and  holds 
it  in  the  same  plight  and  condition  in  which  it  was  held 
by  the  bankrupt. 

§  64.  Property  not  passing  to  trustee :  Exemptions  and 
expectancies.  The  most  uniform  exception  to  the  rule  that 
all  property  owned  by  the  bankrupt  passes  to  the  trustee 
is  that  of  property  that  is  exempt  (54).  Again,  mere 
expectancies  do  not  pass  to  the  trustee.  Thus,  a  bank- 
rupt's son,  who  expects  to  be  the  heir  of  a  parent  owning 
valuable  property,  does  not  have  any  interest  in  his 
parent's  property  other  than  a  possibility  that  when  the 


(53)  Pease  v.  Richie,  132  111.  017. 

(54)  Lockwood  v.  Exchange  Bank,  190  U.  S.  294. 


BANKEUPTCY  261 

parent  dies  he  will  get  a  part  of  it  (55) .  But  such  interest 
does  not  pass  to  the  trustee.  A  bankrupt  woman's  chance 
of  getting  dower  in  her  living  husband's  lands,  in  case 
she  outlives  him,  does  not  pass.  There  is  only  a  bare  pos- 
sibility that  she  will  ever  get  anything;  she  takes  an  in- 
terest only  in  case  she  outlives  the  husband.  Interests  of 
such  a  contingent  character  do  not  pass  (56). 

§65.  Same:  Trust  property.  Property  held  in  trust 
by  the  bankrupt  for  another,  in  which  he  has  no  beneficial 
interest,  does  not  pass.  Thus,  a  party  bought  property 
and  transferred  the  title  to  another,  he  agreeing  to  hold  it 
in  trust  for  the  purchaser's  grandchildren.  The  trans- 
feree became  bankrupt.  For  failure  to  reduce  this  agree- 
ment to  writing  the  trust  could  not  be  enforced  in  favor 
of  the  grandchildren,  and  the  trustee  in  bankruptcy 
claimed  the  property.  The  court  held  that  he  could  not 
take  it,  as  it  was  held  in  trust  for  the  purchaser  upon  a 
failure  of  the  trust  in  favor  of  the  grandchildren  (57). 

§  66.  Same:  After-acquired  property.  Property  ac- 
quired by  the  bankrupt  after  filing  a  petition  and  before 
an  adjudication  belongs  to  the  bankrupt,  free  from  the 
claims  of  creditors  existing  when  the  petition  was  filed. 
So,  property  given  to  the  bankrupt  or  inherited  by  him 
after  the  petition  was  filed,  but  before  the  adjudication, 
does  not  go  to  swell  the  assets  of  the  trustee.  And,  again, 
property  bought  by  him  on  credit  after  the  proceedings 
are  instituted  does  not  pass  to  the  trustee  (58).    It  is  not 


(55)  Moth  V,  Frome,  1  Amb.  394. 

(56)  In  re  Russell,  13  A.  B.  R.  24. 

(57)  In  re  Davis,  7  A.  B.  R.  258. 

(58)  In  re  Burka,  104  Fed.  326  (by  way  of  argument). 


262  BANKKUPTCY 

property  which  he  could  hy  any  means  have  transferred 
before  the  filing  of  the  petition,  nor  is  it  such  property  as 
could  have  been  taken  at  that  time  by  any  judicial  process 
against  him.  Furthermore,  the  claim  arising  from  such 
a  purchase,  having  no  existence  at  the  time  the  petition 
was  filed,  is  not  provable,  nor  is  it  affected  by  the  bank- 
rupt's subsequent  discharge;  only  claims  that  are  prov- 
able being  dischargeable,  as  will  be  seen  in  Chapter  VI, 
below. 

Section  3.    Rights  of  Creditors  Passing  to  Trustee. 

§  67.  In  general.  The  trustee  becomes  vested  not  only 
with  the  property  the  bankrupt  had  title  to  at  the  time 
the  petition  was  filed,  but  he  takes  additional  interests. 
Sec.  70a  (4)  purports  to  give  to  the  trustee  title  to  prop- 
erty the  bankrupt  had  conveyed  in  fraud  of  creditors,  and 
sec.  70a  (5)  to  give  him  the  property  of  the  banlvrupt 
which  might  have  been  taken  under  judicial  process  issued 
against  him.  These  provisions  standing  alone  would  give 
the  trustee  no  interest  in  property  conveyed  by  the  bank- 
rupt in  fraud  of  creditors,  for  the  bankrupt  retains  no 
interest  in  such  property.  A  debtor  by  making  such  a 
conveyance  divests  himself  of  all  title,  and,  as  between 
him  and  the  transferee,  the  bankrupt 's  title  is  withdrawn 
as  effectually  as  if  the  conveyance  had  been  made  in  ab- 
solute good  faith.  If  the  trustee,  therefore,  were  limited 
to  the  bankrupt's  right  in  such  property  and  he  sought 
to  reclaim  it  by  virtue  of  sec.  70a  (4)  and  (5)  he  would 
get  nothing. 

§  68.  Conveyances  in  fraud  of  creditors.  The  Act  is 
sufficiently  extensive,  however,  to  vest  in  him  this  right. 


BANKRUPTCY  263 

He  not  only  acquires  the  right  to  set  aside  fraudulent 
conveyances  made  within  four  months  before  bankruptcy 
proceedings  were  instituted  (59),  but  even  those  made  at  a 
more  remote  period,  provided  only  that  the  right  to  set 
them  aside  is  not  barred  by  the  statute  of  limitations  (60) 
of  the  state  where  the  transfers  were  made.  The  fact 
that  the  debtor  has  no  title  or  interest  in  such  property 
does  not  in  any  way  affect  the  title  and  interest  of  the 
trustee  therein.  In  the  absence  of  bankruptcy  proceed- 
ings, creditors  may  levy  upon  such  property  in  the  hands 
of  the  fraudulent  transferee,  and  sell  it  to  satisfy  their 
claims.  If  it  cannot  be  advantageously  sold  because  of 
the  cloud  on  the  title  caused  by  the  fraudulent  instrument 
of  conveyance,  they  m^y  apply  to  a  court  of  equity  to 
remove  such  cloud  (61).  It  is  to  the  creditors'  rights 
in  fraudulent  conveyances  that  the  trustee  succeeds  (62), 
as  well  as  to  any  title  of  the  bankrupt.  If  this  were  not 
so,  creditors  would  be  prejudiced  by  bankruptcy  proceed- 
ings rather  than  benefited  (the  latter  being  the  object  of 
the  Act),  because  their  hands  would  be  tied  by  being  sub- 
ject to  injunction  against  bringing  or  continuing  suits 
after  bankruptcy,  until  a  discharge  has  been  granted, 
and  thereafter  subject  to  the  plea  of  a  discharge  (63). 
If  it  can  be  shown  by  the  trustee  that  the  bankrupt  gave 
away  certain  property,  or  made  any  other  conveyance 
recognized  as  fraudulent  against  creditors  by  the  state 


(59)  Sec.  67e. 

(60)  Sec.  70e. 

(61)  Lumber  Co.  v.  Thierault,  107  Wis.  627. 

(62)  Bush  V.  Export  Storage  Co.,  136  Fed.  918. 

(63)  Sec.  11a. 

Vol.  X— 10 


2CA  BANKRUPTCY 

law  (64),  he  acquires  through  the  creditors  the  right  to 
set  aside  such  conveyances  and  to  make  the  property  con- 
veyed a  part  of  the  assets  of  the  estate. 

§  69.  Purchasers  of  property  conveyed  in  fraud  of  cred- 
itors. The  trustee  is  limited  in  his  right  to  set  aside 
fraudulent  conveyances,  very  much  as  he  is  limited  in 
the  interest  he  takes  by  virtue  of  the  title  held  by  the 
bankrupt.  It  was  seen  above  (§63)  that  the  trustee  takes 
the  bankrupt's  title  to  property,  subject  to  any  outstand- 
ing incumbrances,  charges,  or  equities  placed  on  it  by  the 
bankrupt.  The  first  limitation  is  provided  for  in  the  Act, 
where  it  says  that  the  trustee  cannot  set  aside  fraudulent 
conveyances  as  against  those  who  have  purchased  the 
property  from  the  transferee  without  notice  or  knowledge 
of  the  fraud  (65).  The  second  limitation  is  a  result  of 
judicial  decision.  The  United  States  Supreme  Court  has 
laid  down  the  doctrine  that  the  trustee  cannot  reclaim  a 
fraudulent  conveyance,  unless  some  creditor  had,  before 
the  filing  of  the  petition,  actually  seized  the  property 
which  was  the  subject  of  the  conveyance ;  and  other  courts 
have  held  that  it  may  be  done  then  only  to  the  extent  of 
the  judgment  sought  to  be  satisfied  by  the  seizure.  The 
discussion  of  the  doctrine  of  this  case  appears  below 
(§§73-74). 

§  70.  Conveyances  and  liens  not  fraudulent  but  void  as 
to  creditors.  By  the  laws  of  many  states  conveyances  of 
property  by  a  party,  whether  absolutely  or  merely  by  the 
creation  of  a  lien  as  a  security  for  a  loan,  are  void  as  to 


(64)  See  §§21-31,  above. 

(65)  Sees.  67e  and  70e. 


BANKEUPTCY  265 

creditors,  unless  the  mstniment  of  conveyance  has  been 
recorded  or  the  transferee  has  taken  possession  under  it. 
Some  statutes  make  such  conveyances  void  as  against 
creditors  generally,  interpreting  the  word  ** creditors"  to 
mean,  however,  only  those  who  seize  upon  the  property 
by  attachment  or  execution  or  acquire  a  lien  by  judgment, 
before  the  instrument  is  recorded  or  possession  taken 
under  it.  Others  make  them  void  merely  as  to  subse- 
quent creditors.  The  Act  provides  that  all  conveyances 
of  property,  void  as  against  the  creditors  by  the  laws  of 
the  state  where  situated,  shall  be  void  against  them  if  the 
transferor  is  adjudicated  a  bankrupt  (66).  It  also  says 
that  claims,  which,  for  want  of  record,  would  not  be  valid 
liens  as  against  the  claims  of  creditors  of  the  bankrupt, 
shall  not  be  liens  against  his  estate  (67). 

§  71.  Same:  Illustrations.  If  a  debtor  convey  land  to 
another,  and  the  latter  fails  to  have  the  instrument  of 
conveyance  recorded  or  to  take  possession  of  the  land,  a 
judgment,  attachment,  or  execution  creditor  may  take  the 
land  to  satisfy  his  claim,  even  against  the  transferee  (68). 
Similarly,  where  a  contractual  vendor  of  chattels  sells 
them  to  another,  retaining  title  in  himself  until  paid  for 
by  the  vendee,  if  the  state  law  requires  such  a  contract 
to  be  recorded  in  order  to  protect  the  contractual  vendor 
against  the  claims  of  the  vendee's  creditors,  a  failure  to 
record  subjects  such  property  to  the  claims  of  the  ven- 
dee's attachment  or  execution  creditors.   Sales  under  con- 


fee)    Sec.  e7e. 

(67)  Sec.  67a. 

(68)  First  National  Bank  v.  Staake,  202  U.  S.  141, 


266  BANKEUPTCY 

tracts  of  this  character  are  known  as  ** conditional  sales." 
See  Sales  in  Volume  III  of  this  work.  If  a  chattel  mort- 
gage is  made  and  not  recorded,  where  record  is  required 
to  prevent  the  property  being  taken  by  creditors  of  the 
mortgagor,  attachment  and  execution  creditors  may  de- 
feat the  interest  of  the  mortgagee. 

§72.  Same:  Effect  of  act.  It  is  this  right  which  judg- 
ment, attachment,  or  execution  creditors  have  by  the  laws 
of  some  states  to  take  property  that  has  been  the  subject 
of  such  an  unrecorded  conveyance,  or  a  conveyance  under 
which  the  transferee  has  not  taken  possession,  to  which 
the  trustee  in  bankruptcy  succeeds ;  and  he  succeeds  to  it, 
not  as  a  successor  of  the  bankrupt,  but  as  the  successor 
of  his  creditors.  The  right  is  subject,  however,  as  was 
the  right  to  set  aside  fraudulent  conveyances,  to  the  limi- 
tation that,  if  the  state  law  requires  a  judgment,  attach- 
ment, or  execution  lien  to  defeat  the  interest  of  the  trans- 
feree, the  trustee  cannot  defeat  such  interest  unless  such 
a  lien  claimant  existed  when  the  petition  was  filed.  The 
trustee,  then,  takes  the  rights  that  creditors  had,  if  bank- 
ruptcy had  not  intervened,  to  realize  upon  conveyances 
fraudulent  as  to  creditors  at  common  law  or  under  the 
statute  of  Elizabeth,  conveyances  void  as  to  creditors  for 
want  of  record,  and  also  void  for  any  other  reason  by  the 
law  of  the  state  where  made. 

§  73.  York  Manufacturing  Co.  v.  Cassell.  A  leading 
case  on  the  subject  as  to  when  a  trustee  is  in  a  position 
to  attack  such  unrecorded  conveyances,  and,  on  principle, 
even  a  conveyance  in  fraud  of  creditors,  is  that  of  York 
Manufacturing  Co.  v.  Cassel  (69).   A  vendor  of  machinery 

(69)     201  U.  S,  344. 


BANKEUPTCY  267 

sold  it  to  a  party  under  a  contract  of  conditional  sale, 
wherein  the  vendor  retained  the  right  to  remove  and  take 
back  the  property  at  the  expiration  of  a  fixed  time,  if  it 
was  not  paid  for.  Such  contracts  by  the  law  of  the  state 
(Ohio)  were  void  as  to  creditors  if  not  recorded.  The 
vendee  became  bankrupt,  before  any  creditor  had  levied 
on  the  machinery  or  put  himself  in  a  position  to  assert 
a  lien  against  it.  The  trustee  contended  that  the  vendor 
could  not  hold  the  machinery  against  him,  because  the 
contract  was  void,  not  being  recorded  as  required  by  law. 
The  court  held  that,  as  no  creditor  had  put  himself  in  a 
position  to  avoid  the  transfer  before  bankruptcy  inter- 
vened—had not,  as  it  is  said ' '  armed  himself  with  process '  * 
—the  trustee  could  assert  only  the  interest  of  the  bank- 
rupt, which  was  subject  to  the  right  of  the  vendor  to  re- 
move the  machinery. 

§  74.  Same :  Results  of  this  decision.  Applying  the  prin- 
ciples the  Supreme  Court  laid  down  in  this  case,  it  would 
seem  necessary  that  creditors  take  all  the  steps  essential  to 
setting  aside  a  fraudulent  conveyance  before  bankruptcy 
intervened,  in  order  to  clothe  the  trustee  with  any  right  or 
power  to  do  so.  A  deplorable  consequence  of  this  doctrine 
is  to  be  noted.  If  no  creditor,  at  the  time  bankruptcy 
proceedings  begin,  has  procured  a  judgment  against  the 
debtor,  had  execution  issued  and  returned  unsatisfied 
(the  ordinary  prerequisite  to  be  entitled  to  set  aside  a 
fraudulent  conveyance),  then  the  trustee  cannot  procure 
for  creditors  the  advantage  of  setting  aside  a  fraudulent 
conveyance.    The  creditors  are  prevented  from  bringing 


268  BANKRUPTCY 

sucli  suit,  as  the  bankrupt  may  enjoin  tliem  (70).  The 
result  is  that  property  which  is  the  subject  of  a  fraudu- 
lent conveyance  is  lost  to  creditors,  merely  because  bank- 
ruptcy intervened.  This  result  would  seem  contrary  to 
the  general  spirit  of  the  Act. 

In  a  similar  way,  if  some  creditor  has  not  procured  a 
judgment,  attachment,  or  execution  lien  upon  property 
conveyed  without  recording  where  it  is  required,  creditors 
cannot  increase  the  assets  in  the  trustee's  hands  by  the 
property  in  that  condition;  whereas,  if  bankruptcy  had 
not  intervened,  they  could  take  it  to  satisfy  their  claims. 
To  add  to  what  would  seem  a  sufficiently  deplorable  re- 
sult, the  courts  have  followed  the  logic  of  the  doctrine  to 
its  limit,  and  have  held  that  even  where  such  a  creditor 
had  obtained  a  lien,  only  such  part  of  the  property  can 
be  taken  by  the  trustee  as  will  satisfy  the  claim  on  which 
the  lien  was  procured  (71). 

Section  4.  Rights  of  Trustee  Created  by  Law. 
§  75.  Preferential  transfers  and  legal  liens.  The 
trustee  is  vested  with  certain  rights,  which  he  neither 
derives  as  a  direct  successor  to  the  bankrupt's  interest, 
nor  as  a  successor  to  the  rights  creditors  are  vested  with 
in  the  absence  of  proceedings  in  bankruptcy.  He  is  vested 
with  these  rights  as  a  direct  and  immediate  result  of  the 
law  itself.  The  rights  referred  to  are  those  of  taking  the 
property  which  was  (a)  the  subject  of  a  preferential 
transfer  or  payment  (72),  and  (b)  the  subject  of  a  lien 


(70)  Soc.  11. 

(71)  In  re  Economical  Printing  Co.,  110  Fed.  514. 

(72)  Sec.  60b. 


BANKRUPTCY  269 

acquired  through  legal  proceedings  (73).  A  preference 
given  by  the  voluntary  act  of  the  debtor  or  permitted 
by  him  was  considered  an  innocent  and  harmless  act  at 
common  law.  To  prevent  the  injustice  resulting  from 
such  a  practice  is  one  of  the  chief  objects  of  modern  bank- 
ruptcy legislation.  As  the  common  law  recognized  no 
right  in  creditors  to  interfere  with  preferential  transfers, 
the  bankruptcy  codes  pro\dde  a  new  title  for  the  trustee 
in  order  to  make  the  prohibition  against  giving  pref- 
erences effectual.  Property  subjected  to  liens,  acquired 
by  legal  proceedings  within  four  months  of  filing  the  peti- 
tion, is  also  freed  from  such  liens  by  the  operation  of  the 
bankruptcy  law.  "Were  this  not  the  case  the  effect  of  pro- 
hibiting voluntary  preferences  would  be  lost,  as  eager 
creditors  would  invariably  resort  to  the  indirect  method 
of  getting  what  is  in  fact  a  preference,  though  not  so  called 
by  the  law,  through  the  lien  acquired  in  legal  proceedings. 
In  this  connection  it  must  be  noted  that  liens  acquired  by 
legal  proceedings  may  be  dissolved  in  one  of  two  ways : 

(1)  If  the  lien  claimant  acquired  his  lien,  or  the  pro- 
ceeds resulting  from  a  sale  of  the  property  affected  by 
it,  with  knowledge  of  the  debtor's  insolvency  or  reasonable 
cause  to  believe  him  so,  it  can  be  dissolved  as  a  preference. 

(2)  But  even  in  a  case  where  the  claimant  had  no  such 
knowledge  or  cause  to  believe  the  debtor  was  insolvent, 
the  lien  may  still  be  dissolved,  if  it  was  acquired  while 
the  debtor  was  insolvent,  without  any  further  proof. 

§  76.    Fundamental  features  of  preferences.    In  oi'der 
that  the  bankruptcy  law  may  be  applied  to  property  which 


(73)     Sec.  67,  c  and  f. 


270  BANKEUPTCY 

it  is  asserted  has  been  the  subject  of  a  preferential  trans- 
fer, several  things  must  concur.  A  conveyance  of  prop- 
erty or  the  payment  of  money  must  have  been  made,  the 
result  of  which  was  a  depletion  of  the  debtor's  estate 
and  a  giving  to  the  preferred  creditor  an  undue  propor- 
tion of  the  property.  It  has  been  held  that  where  a  debtor 
gives  a  mortgage  on  certain  property  to  secure  the  pay- 
ment of  a  pre-existing  debt,  in  exchange  for  the  release 
of  a  mortgage  on  other  property,  no  preference  can  be 
established,  as  there  has  been  a  mere  exchange  of  values 
with  no  reduction  in  the  amount  of  the  debtor's  as- 
sets (74).  By  implication,  then,  there  must  be  some  loss 
to  the  creditors  generally,  a  lessening  of  the  assets  to  pay 
debts. 

The  claim  to  satisfy  or  secure  which  the  conveyance  or 
payment  is  made  must  have  been  a  pre-existing  claim. 
For  instance,  to  pay  for  property  delivered  or  work  done, 
concurrently  with  the  receipt  of  the  property  or  the  doing 
of  the  work,  is  not  giving  a  preference.  A  fair  exchange 
of  values  can  injure  no  one  and  is  not  a  preference.  And 
the  payment  of  rent  in  advance  is  not  giving  a  preference, 
as  the  right  to  occupy  the  premises  is  a  valuable  asset 
substituted  for  the  conveyance  (75).  While  these  in- 
stances are  explicable  on  the  ground  that  there  is  an  ex- 
c'hange  of  values,  the  further  element  of  a  pre-existing 
debt  is  wanting,  and  they  are  therefore  not  preferences 
for  that  reason. 

If  the  obligation  paid  or  secured  by  the  debtor  is  not  a 


(74)  Sawyer  v.  Turpin,  91  U.  S.  114. 

(75)  In  re  Lauge,  97  Fed.  197. 


BANKRUPTCY  271 

provable  claim,  the  nature  of  which  will  be  examined  in 
Chapter  V,  below,  no  preference  arises.  Thus,  to  pay  a 
claim  due  another  for  a  personal  injury  inflicted  upon 
him  is  not  giving  a  preference  (76).  Similarly,  the  pay- 
ment of  a  claim  for  libeling  or  slandering  another  would 
not  create  a  preference. 

Furthermore,  the  debtor  must  have  been  insolvent,  i.  e., 
had  less  than  sufficient  property  at  a  fair  valuation  to  pay 
his  debts  when  he  made  the  alleged  preferential  transfer ; 
the  conveyance  must  have  been  made  within  four  months 
of  the  date  of  filing  the  petition;  and  the  creditor  pre- 
ferred must  have  known  or  had  reasonable' cause  to  be- 
lieve the  debtor  intended  to  prefer  him  (77) .  Unless  these 
facts  are  shown  a  trustee  will  have  failed  to  establish  a 
preferential  transfer. 

§  77.  Insolvency.  Under  the  general  state  insolvency 
and  bankruptcy  laws,  as  under  the  prior  Federal  acts, 
the  term  ''insolvency"  meant  an  inability  of  the  debtor  to 
pay  his  debts  as  they  became  due,  entirely  regardless  of 
the  relation  between  the  value  of  his  property  and  the 
amount  of  his  debts.  In  times  of  financial  stringency  even 
the  wealthiest  and  most  prosperous  business  men  would 
be  insolvent  with  such  a  test  applied;  the  majority  of 
business  men  must  have  found  themselves  insolvent  at 
some  time  or  other  during  the  financial  panics  of  1893  and 
of  1907,  had  they  been  subjected  1 )  such  a  test  of  insol- 
vency. It  was  this  test  of  insolvency  which  was  one  of 
the  grounds  of  attack  upon  the  law  of  1867  and  which  ul- 
timately caused  its  repeal. 

(76)  In  re  Yates,  114  Fed.  365. 

(77)  Sec.  60,  a  and  b. 


272  BANKRUPTCY 

Under  the  present  Act  a  person  shall  be  deemed  in- 
solvent, whenever  the  aggregate  of  his  property,  exclusive 
of  any  that  has  been  made  the  subject  of  a  fraudulent 
conveyance,  shall  not,  at  a  fair  valuation,  be  sufficient  in 
amount  to  pay  his  debts  (78).  In  this  connection  it  is 
worthy  of  note  that  this  definition  of  insolvency  differs 
also  from  that  applied  at  common  law,  independent  of 
insolvency  or  bankruptcy  acts,  in  that  it  confines  the 
courts,  in  making  an  estimate  of  the  liabilities,  to  debts, 
which  are  none  other  under  the  Act  than  provable 
claims  (79),  while  the  common  law  test  permitted  them  to 
add  to  the  claims  that  are  known  as  debts,  many  that  were 
not  recognized  as  such  (§32,  above).  What  claims  are 
provable,  will  be  treated  in  Chapter  V,  below.  Suffice  it 
to  say  at  this  place  that  contingent  claims  that  can  be 
counted  at  common  law,  and  claims  for  torts,  where  the 
wrong  cannot  be  waived  and  the  claims  presented  as  on 
contract,  are  not  counted;  but  only  such  as  are  strictly 
provable  claims  under  the  Act.  Such  claims  are  not  in- 
cluded because  they  are  not  provable  (80),  but,  at  common 
law  they  were  included. 

§  78.  Property  included  and  ascertainment  of  value. 
From  the  express  provision  of  the  Act,  the  debtor  is  not 
to  have  the  advantage  of  adding  property  he  has  fraudu- 
lently concealed  or  conveyed  in  order  to  maintain  his 
solvency.  This  does  not,  however,  exclude  from  the  es- 
timnto  of  the  amount  of  his  property  any  that  he  has  con- 
veyed as  a  preference.    By  express  decision  of  the  courts 


(V«)     Sec.  la  (15). 

(79)  Sec.  la  (11). 

(80)  Coding  v.  Roscenthal,  180  Mass.  43 ;  In  re  Yates,  114  Fed.  3G5. 


BANKRUPTCY  273 

he  may  include  property  that  is  exempt  (81),  although  in 
the  end  such  property  may  not  be  taken  by  creditors  to 
satisfy  their  claims.  The  Act  makes  no  reference  to 
exempt  property  when  defining  insolvency,  and,  because 
it  may  be  voluntarily  used  to  pay  debts,  it  is  to  be  included 
in  determining  solvency. 

In  ascertaining  the  value  of  the  property  the  Act  says 
its  fair  value  is  to  be  taken,  and  under  ordinary  circum- 
stances this  would  mean  the  market  value.  In  the  case 
of  a  going  concern,  its  value  is  as  it  existed  at  the  time  a 
preference  was  made  or  lien  acquired  by  legal  proceed- 
ings, and  not  its  value  as  ascertained  by  a  forced  sale 
under  an  execution,  or  even  after  a  levy  was  made,  which 
would  have  a  tendency  to  destroy  its  value  (82). 

§  79.  Debtor's  intent  to  prefer.  It  was  stated  above 
(§  76)  that  an  essential  element  in  establishing  a  prefer- 
ence was  the  necessity  of  showing  that  the  party  receiv- 
ing the  alleged  preference  knew  or  had  reasonable  cause 
to  believe  it  was  intended  by  the  debtor  to  give  a  prefer- 
ence (83).  The  question  naturally  arises,  whether  it  is 
necessary  for  the  trustee  in  an  action  to  avoid  a  prefer- 
ence to  show  that  the  debtor  had  the  actual  intent  to  pre- 
fer, or  whether  it  is  sufficient  merely  to  show  that  the 
claimant  had  reasonable  cause  to  believe  it  was  intended 
to  give  a  preference.  In  a  well  considered  case  (84),  where 
the  trial  judge  instructed  the  jury  that  the  trustee  was 
bound  to  show  the  debtor 's  intent,  the  reviewing  court  re- 


(81)  In  re  Hines,  144  Fed.  142, 

(82)  Chicago  Title  &  Trust  Co.  v.  Roebling's  Sons  Co.,  170  Fed.  71. 

(83)  Sec.  60  (b). 

(84)  Benedict  v.  Deshel,  177  N.  Y.  1. 


274  BANKEUPTCY 

versed  tlie  decision  of  the  trial  court  on  the  ground  that 
the  instruction  was  erroneous.  Thus  has  been  established 
a  strong  precedent  for  the  view  that  the  debtor's  intent  is 
immaterial,  and  such  a  view  would  seem  to  be  correct 
from  the  plain  language  of  the  Act. 

§  80.  Liens  resulting  from  legal  proceedings.  Liens 
that  follow  the  recovery  of  a  judgment  against  a  debtor 
are  in  strictness  preferences  (85)  entered  of  record  within 
four  months  of  bankruptcy  when  the  debtor  is  insolvent ; 
but,  unless  this  acquisition  was  accompanied  by  the  mental 
attitude  of  the  claimant  found  to  be  requisite  to  set  aside 
a  preference,  the  property  cannot  be  reached  by  the  trustee 
on  that  theory.  This  kind  of  a  lien  acquired  by  legal  pro- 
ceedings does  not  cover  all  classes  of  liens,  and  it  is  the 
property  covered  by  liens  acquired  by  legal  proceedings 
that  are  not  strictly  preferences,  that  the  trustee  takes 
under  this  head.  To  illustrate,  a  creditor  acquires  a  judg- 
ment more  than  four  months  before  the  filing  of  the  peti- 
tion, and  procures  an  execution  lien  on  chattels,  or  an 
equitable  lien  resulting  from  a  creditor's  bill  within  four 
months  before  bankruptcy ;  the  property  covered  by  such 
lien  is  not  preferentially  transferred,  yet  it  is  dissolved 
and  the  property  passes  to  the  truscee  from  the  claim- 
ant (86).  Insolvency  at  the  time  the  lien  attached  is 
requisite  as  in  case  of  preferences,  but  knowledge  of  the 
debtor's  insolvency,  or  reasonable  cause  to  believe  him  in- 
solvent, is  not  essential  as  it  was  in  the  case  of  prefer- 
ences. 


(85)  Sec.  eOa. 

(86)  Sec.  67b. 


BANKRUPTCY  275 

§  81.    Same:    Additional  illustrations.    The  same  rule 

is  applicable  to  attachments  made  upon  property  before 
procuring  judgment.  Such  a  lien  is  also  dissolved  by 
bankruptcy  (87).  If  a  judgment  creditor  procures  a 
judgment  lien  on  the  debtor's  land,  such  lien  will  be  nulli- 
fied (88).  Even  a  lien  acquired  by  a  garnishment  pro- 
ceeding, wherein  property  or  money  of  the  debtor  in  the 
hands  of  third  parties  is  subjected  to  a  lien,  is  dis- 
solved (89).  The  Act  is  effective  in  nullifying  the  lien 
acquired  by  almost  all  receivership  proceedings  and  by 
ordinary  creditors'  bills  (90). 

§  82.  Liens  not  resulting  from  legal  proceedings.  Not 
all  liens  acquired  within  four  months,  while  the  debtor  is 
insolvent,  can  be  dissolved  by  the  trustee;  either  on  the 
theory  of  preferences  or  on  a  theory  of  liens  acquired 
by  legal  proceedings.  Some  of  the  liens  that  are  not  af- 
fected, as  shown  by  decided  cases,  are  a  sub-contractor's 
lien  (91),  a  livery-man's  lien  (92),  a  landlord's  lien  for 
rent  (93),  a  material  man's  lien  (94),  and  an  artisan's 
lien  (95) .  Other  similar  liens  which  should  not  be  affected 
for  the  same  reason  are  innkeepers'  liens,  carriers'  liens, 
and  warehousemen's  liens.  These  liens,  not  being  acquired 


(87)  Bear  v.  Chose,  90  Fed.  920. 

(88)  In  re  Tupper,  163  Fed.  76G  (by  inference). 

(89)  Klipstein  v.  Allen  Miles  Co.,  13G  Fed.  385,  389-90  (semble).  Con- 
tra :  London  Guaranty  and  Accident  Co.  v.  Mossness,  108  111.  App.  440. 

(90)  Metcalf  v.  Barker,  187  U.  S.  165. 

(91)  In  re  Emslie,  102  Fed.  291. 

(92)  In  re  Mero,  128  Fed.  630  (semble). 

(93)  In  re  Mitchell,  116  Fed.  87,  98  (semble). 

(94)  In  re  Emslie,  102  Fed.  291. 

(95)  In  re  Lowensohn,  4  A.  B.  R.  79   (work  done  on  garments  by 
tailor  for  manufacturer). 


276  BANKEUPTCY 

by  legal  proceedings,  but  by  a  possession  of  the  prop- 
erty or  by  notice  and  recording  of  claims  as  acquired  by 
statute,  they  are  not  affected  by  bankruptcy  proceedings ; 
and  the  trustee  cannot  take  the  property  free  from  such 
liens,  as  he  can  property  to  which  liens  have  become  at- 
tached by  virtue  of  legal  proceedings.  As  seen  from  the 
general  nature  of  these  liens,  they  are  of  such  a  character 
that  as  a  rule  the  consideration,  to  secure  which  the  lien 
is  given,  is  advanced  simultaneously  with  the  acquisition 
of  the  lien,  or  practically  so.  They  are  thus  exempt  from 
the  field  of  preferences,  because  there  was  a  transfer  for 
a  present  debt. 


BANKKUPTCY  277 


CHAPTER  V  . 

^      PROVABLE  CLAIMS. 

§  83.  Historical  basis  of  provability.  As  stated  at  the 
outset,  historically  only  traders  and  merchants  could  be- 
come bankrupts,  and  the  early  laws  were  passed  for  the 
protection  and  better  security  of  these  classes  as  against 
their  debtors.  The  claims  that  were  most  commonly  in- 
volved and  presented  for  allowance  against  a  bankrupt 
must  have  been  those  of  the  merchant  and  trading  classes, 
consisting  of  fixed  liabilities  based  on  contracts  or  written 
documents,  and  the  statement  is  ventured  that  instances 
were  rare  when  claims  arising  from  some  injury  or  wrong 
not  based  upon  contract  were  presented. 

§  84.  Importance  of  subject.  The  subject  of  provable 
claims  is  of  importance  in  three  aspects :  (a)  If  a  party 
has  a  provable  claim  he  may  join  in  a  petition  to  have 
a  debtor  adjudicated  a  bankrupt.  Mention  of  this  fact 
was  made  in  connection  with  the  subject  of  who  may  be 
petitioning  creditors,  and  it  was  there  stated  that  only 
those  having  provable  claims  could  join  in  a  petition  (§  16, 
above),  (b)  The  party  having  a  provable  claim  may  also 
cast  a  vote  for  a  trustee  in  bankruptcy,  as  stated  in  con- 
nection with  that  subject  (§44,  above),  (c)  The  pur- 
pose and  object  of  giving  to  a  claimant  the  two  preceding 
rights,  founded  on  the  fact  that  he  has  a  provable  claim. 


278  BANKRUPTCY 

is  to  give  him  a  better  protection  of  his  claim,  to  give 
him  a  power,  which,  if  exercised,  will  result  in  procuring 
the  only  thing  for  which  the  rights  are  given— a  dividend 
from  a  fund  realized  by  sale  of  the  assets.  So  the  third 
important  aspect  of  a  provable  claim  is  to  allow  participa- 
tion in  the  proceeds  of  the  estate. 

§  85.  When  claims  must  exist  to  be  provable.  Every 
bankruptcy  law  fixes  some  point  of  time  separating  claims 
into  those  that  are  provable  and  those  that  are  not— 
those  that  may  participate  in  the  administration  of  the 
estate  and  in  its  fruits,  and  those  that  may  not.  The 
present  law  has  fixed  the  date  of  filing  the  petition  as  the 
time  of  cleavage.  All  claims,  if  not  otherwise  contraven- 
ing provability,  that  arose  and  became  fixed  liabilities, 
absolutely  owing,  before  the  filing  of  the  petition,  are 
provable;  claims  not  arising  and  becoming  fixed  liabili- 
ties, until  after  that,  are  not  by  the  Act  claims  that  are 
entitled  to  be  proved.  This  was  squarely  decided  in  a 
case  where  an  attorney  performed  legal  services  for  a 
bankrupt,  after  the  petition  was  filed  and  before  the  ad- 
judication, and  the  court  held  that  his  claim  for  services, 
because  it  arose  after  the  filing  of  the  petition,  was  not 
provable,  although  otherwise  meeting  the  requirements  of 
a  provable  claim  (1).  It  is  essential  that  the  claim  be  a 
fixed  liability  before  the  petition  is  filed  to  be  provable. 

§  86.  Claims  based  on  written  documents.  As  a  gen- 
eral rule,  claims  based  upon  and  debts  evidenced  by 
formal  documents  are  provable  in  bankruptcy.  All  claims 
of  that  character  that  are  fixed  liabilities   absolutely 


(1)     Re  Burka,  104  Fed.  326. 


BANKRUPTCY  279 

owing,  even  though  not  due  to  be  paid  until  after  the  pro- 
ceedings were  begun,  are  provable  (2).  The  principle  is 
well  illustrated  by  an  English  case,  which  shows  that  the 
law  is  the  same  in  that  country.  A  party  agreed  by  in- 
strument in  writing  that  six  months  after  his  death  his 
executors  should  pay  the  claimant  three  thousand  pounds. 
Later  the  obligor  became  bankrupt.  Upon  the  question 
arising  whether  the  promise  to  pay  could  be  proved,  the 
court  decided  it  could  (3).  Included  in  this  class  are 
claims  on  promissory  notes,  bills  of  exchange,  checks, 
bonds,  written  contracts,  deeds,  covenants,  judgments,  and 
the  like.  If  a  bankrupt  owes  a  thousand  dollars  on  a  note 
not  due  at  the  time  he  became  bankrupt,  such  a  claim 
not  only  may,  but  must  be  proved,  if  the  holder  ever  ex- 
pects to  realize  anything  from  it.  With  certain  excep- 
tions to  be  noted  hereafter  (§  94,  below),  claims  based  on 
judgments  that  existed  at  the  time  the  petition  was  filed 
are  provable  even  though  based  upon  a  claim  that  could 
not  have  been  proven  had  it  not  been  merged  in  a 
judgment. 

§  87.  Claims  based  on  express  or  implied  contracts. 
Another  extensive  class  of  provable  claims  is  that  based 
upon  express  or  implied  contracts  (4).  These  claims, 
though  based  on  contracts,  as  were  many  in  the  preceding 
class,  are  not  based  on  written  contracts  but  upon  verbal 
or  implied  agreements.  In  this  connection  may  be  noticed 
three  forms  of  contractual  obligations  that  are  provable : 

(2)  Sec.  63a  (1). 

(3)  Baruett  v.  King  [1891]  1  Ch.  4. 

(4)  Sec.  63a  (4). 

Vol.  X— 20 


280  BANKEUPTCY 

(a)  Those  based  on  express,  verbal  or  oral  agreements; 

(b)  those  based  upon  undertakings  implied  from  the  acts 
of  the  parties;  and  (c)  those  that  are  implied  by  law. 

§  88.  Express  verbal  agreements.  Any  obligation  to 
pay  money  for  goods  sold,  money  loaned,  or  labor  per- 
formed, upon  an  express  verbal  agreement,  if  not  objec- 
tionable on  the  ground  that  it  is  verbal  and  not  written, 
and  if  owing  at  the  time  the  petition  is  filed,  is  provable. 
A  merchant  agrees  verbally  to  give  a  party  a  hundred 
dollars  a  month  for  clerking  in  his  store.  If  after  the 
work  has  been  done  the  merchant  becomes  bankrupt,  the 
clerk  may  prove  his  claim  in  the  proceedings.  A  jobber 
sells  a  merchant  goods  on  open  account  from  time  to  time, 
on  orders  given  him  by  the  latter.  The  jobber's  claim  is 
provable. 

§  89.  Undertakings  implied  from  acts  of  parties. 
Claims  that  arise  from  implied  contracts  may  be  deemed 
to  be  of  two  forms.  The  first  form  is  where  the  implied 
obligation  arises  from  the  acts  of  the  parties  showing 
their  intentions.  A  merchant  hires  a  man  to  unload  a 
carload  of  flour  for  ten  dollars.  He  does  so  and  is  paid. 
T(he  next  week  the  man  sees  another  carload  to  be  un- 
loaded ;  he  unloads  it,  to  the  knowledge  of  the  owner,  who 
did  not  expressly  authorize  him  to  do  so  but  said  nothing. 
In  such  a  case  the  owner's  action  would  be  evidence  of  an 
implied  agreement  to  pay  the  laborer;  his  claim  is 
provable. 

§  90.  Undertakings  implied  by  law.  Contracts  implied 
by  law  is  the  second  form.  Such  a  contract  is  only  raised 
where  a  party  procures  the  property  of  another,  through 


BANKKUPTCY  281 

a  wrong  of  such  a  character  that  he  could  be  held  liable, 
not  on  contract  alone,  but  in  an  action  of  tort  as  well. 
Thus,  a  party  steals  another's  horse  and  thereby  adds  to 
his  property.  If  the  thief  becomes  bankrupt,  the  claimant 
has  two  forms  of  remedy,  one  in  tort,  the  other  on  the 
contract  implied  in  law.  See  Quasi-Contracts,  Chapter 
II,  in  Volume  I.  Claims  having  this  dual  aspect  may  be 
proved,  although  sounding  in  tort  (5).  A  very  similar 
case  is  where  a  jobber  sells  a  retailer  goods,  on  a  fraudu- 
lent representation  of  the  latter  as  to  his  financial  stand- 
ing. The  jobber  may  hold  the  retailer  liable  in  an  action 
of  tort  for  deceit,  or  he  may  hold  him  liable  on  the  con- 
tract for  the  goods.  In  such  a  case,  where  the  claimant 
has  two  such  claims  and  may  waive  the  tort  claim  and 
proceed  upon  his  contractual  right,  he  has  a  provable 
claim  (6) .  A  bankrupt  may  have  received  money  or  prop- 
erty from  another  by  false  representations  or  tricks  of 
various  kinds,  other  than  the  one  just  mentioned  of  mak- 
ing a  false  financial  statement.  Where  the  result  of  such 
fraud  is  the  acquisition  by  the  bankrupt  of  property  or 
wealth  which  results  in  enriching  him,  the  claimant  may 
waive  the  tort  claim  and  proceed  upon  his  contractual 
claim,  which  is  provable.  Such  a  claim  is  discharged 
whether  proved  or  not  (7). 

§  91.  Unliquidated  claims.  Unliquidated  claims  are 
those  that  have  not  been  reduced  to  certainty  as  to  the 
amount.    The  fact  that  a  claim  on  a  broken  contract  has 


(5)  Crawford  v.  Burke.  195  U.  S.  176. 

(6)  Tindle  v.  Birkett,  205  U.  S.  183. 

(7)  Crawford  v.  Burke,  note  5,  above. 


282  BANKEUPTCY 

not  become  fixed  in  amount  does  not  prevent  its  being 
proved  if  it  is  otherwise  provable.  The  amount  of  divi- 
dend to  be  paid  on  an  unliquidated  claim  cannot  be  ascer- 
tained until  it  is  reduced  to  a  certainty.  This  process  of 
reduction  is  in  the  hands  of  the  court  (8),  which  may 
authorize  its  liquidation  in  the  court  of  bankruptcy,  or 
order  it  to  be  liquidated  in  some  other  court.  After 
liquidation,  it  participates  in  the  dividends  as  other 
claims. 

§  92.  Same:  Illustrations.  A  merchant  agrees  to  buy 
a  carload  of  flour  a  week,  for  ten  weeks,  from  a  milling 
company ;  he  refuses  to  take  the  first  five  cars,  and  when 
the  sixth  and  subsequent  cars  are  deliverable  he  is  a 
bankrupt.  In  such  a  case,  the  damages  for  the  failure  to 
accept  the  first  five  cars  are  not  liquidated  and  can  only 
be  liquidated  by  trial,  yet  they  are  provable.  Further- 
more, the  damages  for  the  failure  to  accept  the  remaining 
five  cars  after  bankruptcy  are  provable  (9).  Similarly, 
if  the  milling  company  had  on  its  part  failed  to  perform, 
and  had  become  bankrupt  after  the  time  for  the  perform- 
ance of  a  part  of  the  contract  had  transpired,  the  pur- 
chaser would  have  a  provable  claim  for  the  entire 
damages  (10).  It  has  been  held  by  the  courts  that,  where 
a  party  agreed  to  retain  another  in  his  employ  for  a  cer- 
tain period,  and,  before  the  term  expired,  discharged  him 
or  made  it  impossible  for  him  to  continue,  and  then  be- 
came bankrupt,  the  employee  had  a  provable  claim,  even 
though  the  amount  would  have  to  be  ascertained  by  trial, 


(8)  Sec.  63b. 

(9)  In  re  Saxton  Furnace  Co.,  142  Fed.  293. 

(10)  In  re  Manhattan  Ice  Co.,  114  Fed.  400. 


BANKRUPTCY  283 

and  though  the  term  did  not  expire  until  after  the  bank- 
ruptcy interv^ened  (11).  A  breach  of  a  contract  to  marry 
gives  rise  to  damages,  the  amount  varjdng  in  different 
cases  depending  upon  the  nature  of  the  circumstances. 
Yet,  such  a  claim  is  provable,  being  a  claim  based  on  con- 
tract (12). 

§  93.  Unprovable  claims.  To  assist  in  delimiting  the 
clauns  that  are  provable,  it  will  be  useful  to  notice  some 
of  the  more  important  claims  that  are  not  provable.  It 
should  be  here  noted  that,  if  not  provable,  as  a  rule  the 
claim  is  not  dischargeable— a  compensation  the  claimant 
gets  for  being  compelled  to  abstain  from  pro  rating  with 
other  claimants.  Since  not  discharged,  the  bankrupt  may 
be  sued  upon  them,  and  his  property  subsequently  ac- 
quired may  be  taken  to  satisfy  the  claim  (13).  The  sub- 
ject of  dischargability  of  claims  will  be  fully  treated  in 
the  next  chapter. 

§  94.  Certain  judgments  unprovable.  As  stated  (§86), 
judgments  are  generally  provable.  This  is  true  even 
though  the  claim  that  is  merged  in  the  judgment  is  not 
a  provable  claim.  Thus,  a  judgment  for  a  wrong  to 
another's  person,  such  as  a  judgment  for  assault  and 
battery,  is  provable;  although  the  claim  for  the  assault 
and  battery  was  not  provable  before  being  reduced  to 
judgment.  But  certain  judgments  are  not  provable. 
Among  these  are  judgments,  more  accurately  called  de- 
crees, for  alimony  (14),  or  for  the  support  of  wife  and 

(11)  In  re  Silverman  Bros.,  101  Fed.  219. 

(12)  In  re  Fife,  109  Fed.  880. 

(13)  Coding  v.  Roscenthal,  180  Mass.  43. 

(14)  Audubon  v.  Shufeldt,  181  U.  S.  575. 


284  BANKRUPTCY 

children,  and  judgments  imposing  fines  (15)  for  criminal 
wrongs.  Tlie  reason  for  making  such  judgments  excep- 
tions is  not  readily  ascertainable,  but  that  such  exceptions 
exist  is  firmly  decided.  It  would  seem  that  they  ought 
to  be  provable  as  any  judgment,  but  such  fact  should 
have  no  effect  on  the  question  of  discharge. 

§  95.  Torts  not  resulting  in  unjust  enrichment.  A  large 
class  of  claims  recognized  by  the  law  is  based  upon  wrongs 
to  the  person  or  property  of  another.  Such  wrongs  do 
not,  as  a  rule,  result  in  enriching  the  wrong-doer ;  and,  as 
they  do  not  and  so  are  not  capable  of  being  reduced  to 
the  proper  form,  they  cannot  be  proved.  It  is  only  where 
a  wrong  results  in  enriching  the  wrongdoer  that  the 
claimant  may  elect  to  pursue  him  as  on  contract.  Such 
wrongs  as  slander,  libel,  assault  and  battery  (16),  wilful 
or  negligent  injury  to  the  person,  and  wilful  or  negligent 
injury  of  property  are  not  recognized  in  the  law  as  having 
the  dual  aspect  of  a  tort  and  a  contract  (quasi-contract), 
and  so  they  are  not  provable. 

§  96.  Contingent  claims.  When  proceedings  in  bank- 
ruptcy are  instituted,  some  claims  are  contingent,  i.  e., 
there  is  an  uncertainty  as  to  whether  any  fixed  liability 
will  ever  arise  on  them.  Thus,  a  claim  for  rent  to  accrue 
in  the  future  on  a  written  lease  is  not  provable  (17),  be- 
cause of  the  contingent  character  of  the  claim,  it  not  being 
absolutely  owing  at  the  time  the  petition  was  filed.  If 
the  landlord  is  evicted  by  some  one  with  a  better  title,  no 

(15)     In  re  Moore,  111  Fed.  145. 
(Ki)     In  re  Brinckiuann,  103  Fed.  G5. 
(17)     Watson  v.  Merrill,  136  Fed.  359. 


BANKEUPTCY  285 

rent  will  accrue;  or,  if  the  landlord  ejects  the  tenant 
wrongfully,  or  reenters  because  the  latter  has  broken 
some  provison  in  the  lease  which  was  the  basis  for  such 
renting,  the  landlord  would  have  no  claim  against  the 
tenant,  and  therefore  no  provable  claim  in  bankruptcy. 
It  is  because  the  claim  for  future  rent  is  thus  deemed  con- 
tingent in  law,  that  courts  do  not  permit  it  to  be  proved. 
On  the  other  hand,  however,  any  rent  that  has  become 
absolutely  owing  by  having  become  due  before  filing  the 
petition  is  provable  (18),  and  this  is  the  rule  even  though 
the  occupancy  is  to  occur  subsequent  to  the  date  the  rent 
becomes  due.    As  the  claim  for  future  rent  is  not  prov- 
able, it  is  not  discharged;  and  the  bankiTipt  may  be  held 
liable  for  it  out  of  his  future  acquisitions  (19).    Again, 
if  a  person  sells  stock  in  a  corporation  to  another,  guar- 
anteeing that  it  will  draw  a  dividend  of  five  per  cent, 
within  a  year,  and  before  the  year  ends  the  guarantor 
becomes  bankrupt,  the  party  guaranteed  has  no  prov- 
able claim   (20),  as  the  question  whether  any  duty  to 
pay  would  ever  become  fixed  was  unknown  at  the  date 
of  bankruptcy.    These  contingent  claims,  like  the  others 
mentioned,   are  not  dischargeable,   and  the  bankrupt's 
future  property  may  be  taker  to  satisfy  them. 

§97.  Same:  Secondary  liabilities  upon  commercial 
pape"**.  The  most  noteworthy  exception  to  the  rule  that 
contingent  claims  are  not  provable  is  the  case  of  the 
holder  of  a  note,  upon  which  the  bankrupt  is  guarantor  or 
indorser.    In  either  case  he  is  only  obliged  to  pay  at  the 


(18)  In  re  Mitchell.  116  Fed.  87. 

(19)  Coding  v.  Rosoenthal,  180  Mass.  43. 

(20)  Re  Pettingill,  137  Fed.  133. 


286  BANKEUPTCY 

maturity  of  the  instrument  if  the  party  primarily  liable 
does  not  pay ;  and,  as  indorser,  he  is  under  no  obligation 
to  pay  until  after  a  demand  of  the  maker  on  the  date  of 
maturity  and  notice  to  the  indorser  of  this  fact.  With 
such  a  limitation  upon  the  duty  to  pay,  the  claim  of  the 
holder  is  obviously  contingent,  yet  the  courts  hold  that 
such  a  claim  is  provable  (21).  But  they  have  generally 
refused  to  recognize  any  contingent  claim  as  provable,  ex- 
cept the  claim  of  the  holder  of  a  note  against  its  guarantor 
or  indorser  who  have  become  bankrupt. 

§  98.  Claims  to  which  "bankrupt  has  defense.  Although 
a  claim  as  asserted  may  be  prima  facie  provable,  it  does 
not  follow  that  it  will  be  allowed.  It  has  been  seen  that 
the  trustee  becomes  the  successor  to  any  title  to  property 
the  bankrupt  had.  In  a  similar  way  he  becomes  the  suc- 
cessor to  all  the  defenses  the  bankrupt  had  to  protect  that 
property.  Any  defense  the  bankrupt  had  to  a  provable 
claim  may  be  asserted  by  the  trustee— in  fact  it  is  his 
duty  to  assert  it  (22).  Thus,  the  trustee  is  in  duty  bound 
to  assert  the  defense  that  the  claim  should  not  be  allowed 
because  not  in  writing  (23),  if  the  statute  of  frauds  re- 
quires a  writing ;  and,  on  pr  iiciple,  he  ought  to  set  up  the 
defense  that  the  claim  was  outlawed.  In  a  very  similar 
manner,  a  claim  asserted  on  a  contract  should  be  defeated 
by  a  defense  of  a  breach  of  the  contract  by  the  claimant, 
if  such  breach  by  him  exists.    Creditors  may  also  object 


(21)  Moch  V.  Market  Street  Bank,  107  Fed.  897. 

(22)  In  re  Wooten,  118  Fed  670. 

(23)  Note  22. 


BANKRUPTCY  287 

to  the  allowance  of  claims  in  order  to  protect  their 
own  (24). 

§  99.  Priority  of  claims.  Aside  from  the  expenses  of 
administration,  which  are  made  prior  to  all  others,  claims 
are  entitled  to  priority  in  the  following  order  (25) :  (1) 
Taxes  due  to  the  United  States,  state,  county,  district, 
or  municipality.  (2)  Wages  due  to  workmen,  clerks,  or 
servants,  which  have  been  earned  within  three  months  be- 
fore bankruptcy,  not  to  exceed  three  hundred  dollars  to 
each  claimant.  (3)  Claimants  who  are  given  priority 
by  the  laws  of  the  state  where  the  proceedings  are  pending. 


(24)  Sec.  57c ;  In  re  Lorillard,  107  Fed.  677  (where  they  did  so). 

(25)  Bees.  64,  a  and  b. 


288  BANKRUPTCY 


CHAPTER  VI. 
DISCHARGE. 

Section  1.    In  General. 

§  100.  Term  explained.  By  a  discharge  in  bankruptcy 
is  meant  the  release  of  a  bankrupt  debtor  from  the  further 
duty  to  pay  the  debt  or  obligation.  If  a  bankrupt's  estate 
pays  no  dividend  and  he  procures  a  discharge,  he  owes  no 
duty  as  a  matter  of  law  to  pay  any  part  of  the  claim.  If 
his  estate  pays  a  dividend  of  fifty  cents  on  the  dollar  and 
he  procures  a  discharge,  he  ©wes  no  duty  to  pay  the  por- 
tion remaining  unsatisfied. 

§  101.  Questions  involved.  In  considering  the  dis- 
charge of  a  bankrupt  two  distinct  matters  should  be  noted. 
First,  assuming  a  bankrupt  has  procured  a  discharge, 
what  debts  and  obligations  are  affected  by  it  so  that  the 
debtor  owes  no  further  duty  to  pay,  and  what  are  not 
affected  thereby!  The  determination  of  these  questions 
rests  upon  the  provisions  of  the  law  under  which  the 
discharge  is  procured.  Second,  upon  what  grounds  may 
creditors  prevent  a  bankrupt  from  procuring  any  dis- 
charge whatsoever?  There  are  a  number  of  these  con- 
sidered below  (§§  112-20).  These  matters  will  be  treated 
in  this  order. 

§  102.  Historical  statement.  The  earliest  English  bank- 
ruptcy law  contained  no  provision  concerning  a  discharge. 


BANKRUPTCY  289 

The  debtor  was  obliged  to  give  up  bis  property  without 
receiving  any  benefit  whatever  from  it ;  he  was  burdened 
with  debts,  and  hampered  by  his  creditors,  who  took  every 
dollar  he  acquired  as  fast  as  he  acquired  it  to  satisfy  their 
claims.  Under  such  a  handicap  the  prospects  were  only 
slight  of  the  bankrupt's  ever  again  being  an  active  and 
energetic  factor  in  a  commercial  or  a  business  way,  but 
rather  favorable  toward  his  being  a  charge  upon  the  com- 
munity in  the  course  of  time.  The  short  sightedness  of 
such  a  policy  was  realized  in  less  than  two  centuries  in 
England,  and  since  then  nearly  all  the  bankruptcy  systems 
have  provisions  for  the  discharge  of  a  debtor.  The  early 
notion  of  having  no  discharge  feature  at  all  was  sup- 
planted by  the  idea  that  it  must  be  made  a  difficult  matter 
to  get  a  discharge.  This  characteristic  was  especially  pro- 
nounced in  the  national  act  of  1867. 

§  103.  Liberality  of  present  Act  toward  discharges. 
The  legislation  of  1898,  however,  takes  a  more  liberal 
view  and  one  more  consonant  with  political  and  social 
economy.  Instead  of  many  trifling  causes  for  preventing 
a  bankrupt's  discharge,  it  contains  comparatively  few 
and  those  adapted  to  assist  the  trustee  and  creditors  in 
fully  discovering  the  assets.  Thus,  creditors  may  oppose 
a  discharge  on  the  ground  that  a  bankrupt,  for  the  pur- 
pose of  concealing  his  financial  condition,  failed  to  keep 
books  of  account  (1),  or,  at  any  time  within  four  months 
before  the  filing  of  the  petition,  transferred,  removed, 
destroyed,  or  concealed  any  of  his  property,  for  the  pur- 


(1)     Sec.  14b  (2). 


290  BANKRUPTCY 

pose  of  defrauding  Ms  creditors  (2),  or  refused  to  obey 
any  lawful  order  of  the  court  of  bankruptcy  (3),  etc.  A 
fuller  statement  will  be  given  in  subsequent  subsections. 
This  liberality  is  prompted  by  the  thought  that  it  is  better 
for  the  business  community  thnt  a  debtor  who  has  not  been 
too  dishonest  be  relieved  from  his  burdens  and  permitted 
to  go,  unhampered  and  unfettered,  with  renewed  ambi- 
tions, free  to  add  his  energies  to  the  general  progress, 
than  to  keep  him  a  lifelong  slave  to  his  creditors.  A 
greater  social  gain  will  result  from  again  having  him 
added  to  the  self-supporting  wealth-producing  class,  than 
to  have  him  entirely  absent  therefrom,  a  possible  charge 
upon  the  community,  paying  the  penalty  of  having  done 
some  trifling  wrong,  sufficient,  however,  under  the  unwise 
provisions  of  the  law,  to  prevent  his  discharge. 

§  104.  Who  may  apply  for  a  discharge  and  when?  Any 
person,  natural  or  artificial,  may  apply  for  a  discharge. 
Not  even  corporations  (4)  are  excepted  from  the  right 
to  apply  for  and  receive  a  discharge,  if  no  reasons  are 
shown  by  objecting  creditors  to  cause  the  court  to  deny  it, 
although  under  the  act  of  1867  a  corporation  could  not 
procure  a  discharge.  The  application  may  be  made  at 
any  time  after  one  month  subsequent  to  the  adjudication, 
and  within  twelve  months  thereafter  (5).  The  action  of 
the  court  is  procured  by  the  bankrupt  filing  a  petition, 
setting  out  that  the  bankrupt  was  duly  adjudicated,  that 
he  had  surrendered  all  of  his  property  and  complied  with 


(2)  Sec.  14b  (4). 

(3)  Sec.  14b  (0). 

(4)  In  re  Marshall  Paper  Co.,  102  Fed.  872. 

(5)  Sec.  14a. 


BANKRUPTCY  291 

all  the  requirements  of  the  law  and  of  the  orders  of  the 
court,  and  praying  for  a  discharge  of  all  his  debts  except 
those  exempted  by  law. 

§  105.  Nature  of  proceeding.  As  a  matter  of  practice 
in  bankruptcy,  the  bankrupt  makes  his  application  to  the 
court  for  a  discharge,  while  the  court  is  in  the  act,  through 
the  trustee,  of  collecting  the  assets,  settling  the  claims, 
selling  the  property,  and  paying  the  dividends.  With 
these  administrative  matters,  however,  the  application 
for  the  hearing  or  the  discharge  has  no  necessary  connec- 
tion. It  is  a  unique  and  independent  proceeding,  in  which 
the  bankrupt  challenges  his  creditors,  who  reside  in  the 
state  or  jurisdiction  of  the  bankruptcy  court  or  who  have 
proved  their  claims  in  bankruptcy,  to  show  by  what  are 
known  as  objections  filed  to  his  application  why  he  should 
not  be  freed  from  further  obligation  to  meet  his  debts. 
The  evidence  to  sustain  the  objection  is  heard  by  the  court, 
and  it  determines  whether  a  discharge  should  be  granted 
or  not.  If  a  discharge  is  granted,  it  is  given  in  general 
terms,  and  states  that  debts  that  are  by  law  excepted 
from  the  operation  of  the  discharge  are  not  affected.  To 
determine  whether  or  not  a  particular  debt  is  excepted, 
an  independent  proceeding,  based  on  the  theory  that  the 
debt  was  not  discharged,  is  necessary.  In  this  action, 
the  bankrupt  is  obliged  to  plead  his  bankruptcy  and  test 
the  question  of  the  dischargeability  of  the  claim (6). 

Section  2.    Debts  Affected. 
§  106.    Debts  that  are  discharged.   As  a  general  rule  all 
provable  debts  are  discharged  (7).    To  determine  what 


(6)  Hellman  v.  Goldstone,  161  Fed.  913. 

(7)  Sec.  17a. 


292  BANKRUPTCY 

debts  are  provable,  a  reference  should  be  made  to  the 
statement  of  the  law  on  that  subject  heretofore  given  (8). 
In  general  all  claims  constituting  a  fixed  liability  evi- 
denced by  judgements  or  written  instruments  are  dis- 
chargeable, as  are  all  claims  based  on  open  accounts  and 
on  contracts  expressed  or  implied  (9).  These  are  the  most 
important  provable  claims,  the  only  others  mentioned  by 
the  Act  being  certain  costs  of  court  in  litigation  pending 
at  the  date  of  bankruptcy,  of  little  importance. 

§  107.  Debts  not  discharged.  The  converse  of  the  rule 
just  stated  holds  true  also,  i.  e.,  debts  that  are  not  prov- 
able are  not  discharged.  As  has  been  stated  (§§93-96), 
contingent  claims,  claims  based  on  torts  of  such  a  char- 
acter that  the  tort  cannot  be  waived  and  the  claim  asserted 
in  contract,  decrees  for  alimony,  and  judgments  for  fines 
and  penalties  are  not  provable,  and  as  a  consequence  are 
not  dischargeable. 

It  does  not  follow,  however,  that  all  provable  claims 
are  discharged,  for  the  law  expressly  provides  that  cer- 
tain claims  shall  not  be  discharged ;  and,  as  a  consequence, 
even  if  provable,  they  are  not  affected  by  the  discharge. 
Thus,  to  mention  a  few  of  that  class,  liabilities  for  taxes, 
for  obtaining  property  by  false  pretenses  or  false  repre- 
sentations, or  obligations  created  by  an  officer  or  fiduciary 
in  embezzling  or  misappropriating  property  held  in  trust 
by  him  are  not  discharged  (10). 

§  108.    Same:    Illustrations.      In  Katzenstein  v.  Reid 


(8)  See  Chapter  V,  above. 

(9)  Sec.  G3a. 

(10)  Sec.  17a. 


BANKEUPTCY  293 

(11)  a  merchant  bought  goods  of  a  dealer  -Qpon  a  mis- 
representation as  to  his  financial  condition.     After  he 
had  procured  a  discharge  the  vendor  sued  him.      He 
pleaded  his  discharge.    The  court  held  that,  his  debt  hav- 
ing arisen  out  of  a  transaction  whereby  he  procured  prop- 
erty by  false  representation,  it  was  not  discharged.    This 
case  also  passed  upon  the  question  whether  the  fact  that 
the  defrauded  party  had  proved  his  claim  in  the  bank- 
ruptcy proceedings  precluded  him  from  making  any  claim 
after  the  discharge,  based  on  the  fraudulent  transaction. 
The  court  said:    **The  statute  does  not  condition  the 
right  of  a  creditor  to  sue  and  establish  his  claim  against 
a  discharged  bankrupt  on  the  fact  that  he  did  not  prove 
up  his  claim  before  the  referee  and  receive  dividends ;  but 
it  declares  that  certain  debts  are  not  released  by  the  dis- 
charge, and  the  doing  of  these  things  will  not  estop  him 
from  prosecuting  his  suit"  (12).    It  has  also  been  held 
that  making  proof  of  the  claim  with  the  bankruptcy  court, 
based  on  the  theory  of  a  contractual  claim,  did  not  waive 
the  right  the  defrauded  creditor  had  to  proceed  in  an 
action  based  upon  the  fraud  despite  the  discharge  (13). 
And  the  same  rule  has  been  laid  down  in  cases  where  the 
discharge  was  granted  under  the  law  of  1867  (14). 

§  109.  Provable  claims  discharged  whether  proved  or 
not.  Creditors  at  times,  being  ill  advised,  fail  to  prove 
their  claims  and  to  participate  in  the  distribution  of  the 
proceeds,  thinking  that  thereby  they  will  not  be  prejudiced 


(11)  10  A.  B.  R.  746  (Tex.). 

(12)  Ibid.  750. 

(13)  Frey  v.  Torrey,  70  App.  Div.  160;  affirmed  in  175  N.  Y.  177. 

(14)  McBean  v.  Fox,  1  111.  App.  177. 


294  BANKKUPTCY 

in  their  rights  to  make  demand  upon  the  bankrupt  when 
he  has  acquired  more  property.  This  is  only  true  at  times 
when  the  national  act  is  not  in  force  and  a  discharge  is 
sought  under  the  state  law.  In  such  circumstances,  if 
a  creditor  is  a  citizen  of  another  state  and  does  not  prove 
his  claim  against  the  bankrupt,  his  claim  is  not  affected. 
If  he  is  a  citizen  of  the  state,  however,  and  does  not  prove 
his  claim,  it  is  discharged  anyway  (15).  The  same  holds 
true  under  the  national  Act  as  to  citizens  residing  in  the 
United  States,  and  the  test  is  not  whether  the  debt  was 
actually  proved  but  whether  it  was  susceptible  of  being 
proved  (16). 

§  110.  Revival  of  discharged  debt.  The  nature  of  a  dis- 
charge is  such  that  it  is  merely  etfective  for  the  purpose 
of  defending  against  a  suit  based  on  a  discharged  claim. 
If  the  discharge  is  not  interposed  in  such  case,  the  judg- 
ment is  valid  and  cannot  be  reversed.  The  advantage  of 
a  discharge  may  thus  be  waived  by  failure  to  plead  it 
when  sued  upon  the  claim.  It  may  also  be  waived  by  a 
new  promise  to  pay,  made  in  plain  and  unmistakable 
words,  to  which  the  creditor  accedes  (17).  After  such  a 
promise,  a  suit  may  be  maintained  on  the  claim  as  if  no 
discharge  had  been  procured. 

Section"  3.    Opposition  to  Discharge. 
§  111.    Who  may  oppose  a  discharge?    In  the  order  of 
development  after  determining  what  claims  are  and  what 
are  not  dischargeable,  in   case  a   discharge  has  been 


(15)     Baldwin  v.  Hale,  1  Wall.  223. 

(10)     Crawford  v.  Burke,  195  U.  S.  176. 

(17)     International  Harvester  Co.  v.  Lyman,  10  A.  B.  R.  450. 


BANKRUPTCY  295 

granted  it  must  be  determined  under  what  circumstances  a 
discharge  may  be  entirely  denied  the  bankrupt.  It  was 
noted  (18)  that  tlie  last  bankruptcy  act  made  it  an  easy 
matter  for  creditors  to  oppose  a  discharge  and  succeed 
in  depriving  the  bankrupt  of  it,  despite  the  fact  that  he 
had  gone  through  the  process  of  surrendering  his  prop- 
erty. The  present  Act  provides  methods  of  depriving  a 
bankrupt  of  a  discharge  also,  but  the  ease  with  which  to 
deny  it  does  not  appear  so  prominently  as  in  the  prior  law. 
The  law  provides  that  parties  in  interest  (19)  may 
oppose  an  application  for  a  discharge.  This  is  done  by 
filing  specifications  of  objections,  based  upon  the  grounds 
the  act  gives  for  opposing  a  discharge  (20).  The  ''parties 
in  interest"  referred  to  are  creditors,  quite  obviously, 
those  having  provable  and  dischargeable  claims.  This  is 
the  rule,  even  though  the  creditor  does  not  prove  his  claim 
and  seek  to  participate  in  the  dividends  (21).  On  the 
other  hand,  one  holding  a  claim  that  is  not  provable  and 
therefore  not  dischargeable,  cannot  oppose  the  discharge 
(22) ;  nor  can  the  trustee,  it  would  seem,  as  he  is  not 
interested  in  the  question  of  the  discharge  but  merely  in 
the  collection  and  distribution  of  the  assets. 

§  112.  Grounds  of  opposition.  The  grounds  of  opposi- 
tion are  several  and  deserve  separate  treatment.  In  gen- 
eral the  grounds  are  of  such  a  character  as  to  have  a 
tendency  to  coerce  the  bankrupt  to  surrender  his  prop- 


(18) 

See  §  102,  above. 

(19) 

Sec.  14b. 

(20) 

Sec.  14b. 

(21) 

In  re  Bernberg,  121  Fed.  942. 

(22) 

In  re  Servis,  140  Fed.  242. 

Vol 

.  X-2 1 

296  BANKEUPTCY 

erty  fully  and  completely  to  his  creditors.  Of  such  a 
nature  are  the  portions  of  the  law  providing  that  the 
bankrupt  shall  not  have  a  discharge,  if  he  has  concealed 
from  his  trustee  property  belonging  to  his  estate ;  made  a 
false  oath  in  any  bankruptcy  proceeding;  destroyed,  con- 
cealed, or  failed  to  keep  books  of  account  from  which  his 
financial  condition  could  be  ascertained;  transferred,  re- 
moved, destroyed,  or  concealed  property  from  his  credi- 
tors at  any  time  within  four  months  of  the  bankruptcy 
with  intent  to  hinder,  delay,  or  defraud  his  creditors ;  or 
refused  to  obey  any  lawful  order  of,  or  to  answer  any 
material  question  approved  by  the  court  (23).  To  impose 
a  penalty  for  the  violation  of  such  provisions  has  a  ten- 
dency to  coerce  the  bankrupt  to  make  a  complete  dis- 
closure of  all  his  affairs  after  bankruptcy,  and  to  keep 
and  preserve  complete  accounts  of  them  before.  The 
basis  of  these  grounds  is  readily  discernible.  But  the 
basis  of  an  opposition  on  the  ground  that  the  bankrupt 
procured  property  from  a  creditor  upon  a  materially  false 
statement  in  writing  made  at  some  remote  time  before, 
and  that  he  had  been  granted  a  discharge  in  a  voluntary 
proceeding  within  six  years,  are  not  so  easily  discernible ; 
although  there  seems  good  policy  in  denying  a  debtor  the 
privilege  of  procuring  a  discharge  too  often.  While  this 
does  not  debar  him  from  going  into  bankruptcy  more  fre- 
quently than  once  in  six  years  and  having  his  property 
distributed  by  the  court,  it  does  prevent  his  doing  so 
with  the  expectation  of  procuring  the  usual  benefit  and 
favor  of  a  discharge  upon  having  done  so, 

(23)     Sec.  14b. 


BANKEUPTCY  297 

§  113.  Commission  of  offense  punishable  by  Act.  The 
Act  has  made  it  a  criminal  offense,  punishable  by  im- 
prisonment for  two  years,  for  a  person  knowingly  and 
fraudulently  to  conceal  from  his  trustee,  while  a  bank- 
rupt or  after  his  discharge,  any  property  belonging  to 
his  estate  in  bankruptcy,  or  to  make  a  false  oath  or  ac- 
count, in  or  in  relation  to  any  proceeding  in  bank- 
ruptcy (24).  The  Act  says  that  parties  in  interest  may 
also  oppose  a  bankrupt's  discharge  on  the  ground  that 
he  has  committed  an  offense  punishable  under  its  pro- 
visions (25).  The  only  offenses  for  which  a  bankrupt  is 
punishable  are  the  offenses  just  mentioned,  commonly 
known  as  concealing  assets  and  making  a  false  oath. 

§  114.  Conceahnent  of  assets.  The  bankrupt  can  be 
deprived  of  a  discharge  on  this  ground,  only  in  the  event 
that  it  is  shown  by  the  evidence  that  he  lias  knowingly 
and  fraudulently  concealed  assets  (26).  The  proceeding 
is  analogous  to  a  criminal  one  and  an  intent  to  conceal 
must  be  shown.  The  concealment  must  be  from  the  trus- 
tee, either  before  or  after  a  discharge.  A  concealment  in 
a  case  where  no  trustee  was  appointed  would  not  be  a 
basis  for  opposition  to  a  discharge  (27). 

§  115.  MaJdng  false  oaths.  In  order  successfully  to 
oppose  a  discharge  on  this  ground  the  opponent  must 
show,  as  in  case  of  concealment  of  assets,  that  the  bank- 
rupt knowingly  and  fraudulently  made  a  false  oath  or  ac- 
count.    The  false  oath  may  consist  of  false  testimony 

(24)  Sec.  29b. 

(25)  Sec.  14b. 

(26)  In  re  Froeder,  150  Fed.  710. 

<27)  In  re  Toothaker  Bros.,  128  Fed.  187. 


298  BANKRUPTCY 

given  on  an  examination  made  by  the  trustee  to  discover 
assets  (28).  And  it  would  seem  that  false  swearing  in 
the  hearing  on  the  creditor's  petition  for  an  adjudication 
would  be  equally  effective  to  bar  a  discharge.  The  false 
oath  may  be  contained  in  the  schedule  of  the  bankrupt's 
assets,  by  either  omitting  to  state  truthfully  all  his  prop- 
erty, or  by  making  a  false  statement  with  reference  to  the 
debts  he  owes,  or  to  whom  owing,  with  the  expectation  of 
deriving  some  personal  advantage.  In  a  case  where  the 
bankrupt  failed  to  schedule  property  from  which  he  had 
realized  substantial  benefits  as  if  he  were  the  owner,  but 
to  which  he  claimed  he  had  no  title,  the  court  held  he  made 
a  false  oath  (29). 

§  116.  Destroying,  concealing,  or  failing  to  keep  books 
of  account.  This  basis  of  opposition  is  rather  simple.  The 
Act  requires  that  the  destruction,  concealing,  or  failure 
to  keep  books  of  account  must  be  done  with  the  intent  to 
conceal  his  financial  condition  (30).  And  in  a  case  where 
it  was  shown  that  the  bankrupt  omitted  to  state  in  his 
books  what  his  indebtedness  was,  but  where  the  evidence 
did  not  show  this  omission  was  made  intentionally,  the 
court  refused  to  bar  a  discharge  (31). 

§  117.  Fraudulent  transfers  made  within  four  months 
of  bankruptcy.  A  bankrupt's  discharge  may  be  denied,  if 
it  is  shown  that  he  has,  at  any  time  within  four  months 
preceding  the  filing  of  the  petition,  transferred,  removed, 
destroyed  or  concealed,  or  permitted  to  be  removed,  de- 


(28)  Wechsler  v.  U.  S.,  19  A.  B.  R.  1. 

(29)  In  re  Gailey,  127  Fed.  538. 

(30)  Sec.  14b  (2). 

(31)  In  re  Brice,  102  Fed.  114. 


BAl^KRUPTCY  299 

stroyed,  or  concealed  any  of  Ms  property  with  intent  to 
hinder,  delay,  and  defraud  his  creditors  (32).  This  pro- 
vision was  not  added  to  the  law  until  1903,  and  as  a  con- 
sequence few  decisions  have  arisen  under  it.  This  ground 
of  opposition  is  the  complement  of  the  one  permitting  op- 
position on  the  ground  that  the  bankrupt  concealed  prop- 
erty from  his  trustee.  The  former  consists  of  conceal- 
ment before  the  bankruptcy,  and  the  latter  thereafter 
after  a  trustee  has  been  appointed.  The  concealment  un- 
der the  former  is  sufficient  if  a  mere  concealment  is 
shown;  under  the  latter  ground  of  opposition  it  must, 
however,  be  shown  that  the  property  is  still  recoverable. 
The  mere  fact  of  concealment  from  the  trustee  is  iiisuf- 
ficient  (33) ;  it  must  be  a  concealment  of  property  belong- 
ing to  the  estate. 

§  118.  Procuring  property  on  credit  upon  a  false  writ- 
ten statement.  As  stated  above  (34),  it  is  not  any  easy 
matter  to  discern  the  basis  of  permitting  a  creditor,  from 
whom  the  bankrupt  procured  property  on  credit  by  a  ma- 
terially false  statement  in  writing  (35),  to  oppose  a  bank- 
rupt's getting  any  discharge  whatever  from  his  debts.  It 
would  seem  sufficient  to  prevent  his  claim  being  dis- 
charged, without  giving  to  him  the  power  of  preventing 
all  others  being  discharged.  The  explanation  of  nearly 
all  the  other  grounds  of  opposition  rests  upon  the  fact 
that  such  grounds  of  preventing  a  discharge  will  facili- 
tate the  discovery  of  the  truth  with  reference  to  the  bank- 


(32)  Sec.  14b  (3). 

(33)  Vernon  v.  Ullman,  17  A.  B.  R.  438. 

(34)  §  112,  above. 

(35)  Sec.  14b  (4). 


300  BANKRUPTCY 

rupt's  affairs  and  tend  to  swell  the  assets  for  creditors. 
It  was  at  one  time  thought  that  the  materially  false  state- 
ment must  be  made  directly  to  the  party  who  advanced 
property  on  credit.  This  narrow  view  has,  however,  been 
discarded,  and  it  is  now  held  that  if  a  materially  false 
statement  concerning  the  bankrupt's  financial  condition 
was  made  to  a  commercial  agency,  which  communicated 
its  contents  to  another,  who  thereupon  sold  goods  to  the 
bankrupt,  the  party  relying  can  oppose  the  discharge  (36). 

§  119.  Previous  voluntary  discharge  within  six  years. 
The  Act  says  that  a  discharge  may  be  barred,  if  in 
voluntary  proceedings  the  bankrupt  has  been  granted  a 
discharge  within  six  years  (37).  This  provision  has  no 
connection  with  involuntary  cases.  Creditors  may  file  as 
many  petitions  as  they  can  sustain,  and,  upon  the  success 
of  each,  if  the  bankrupt  has  not  in  any  way  placed  himself 
in  a  position  where  a  discharge  may  be  barred  by  one  of 
the  recognized  grounds,  he  can  procure  a  discharge.  If, 
however,  he  has  procured  a  discharge  in  a  voluntary  case, 
and  within  six  years  seeks  a  discharge  in  an  involuntary 
proceeding,  the  former  discharge  is  a  bar  (38).  On  the 
other  hand,  a  refusal  to  grant  a  discharge  in  a  voluntary 
case,  even  though  within  six  years,  is  no  bar  to  a  dis- 
charge in  a  voluntary  proceeding.  The  statute  mentions 
only  cases  where  a  discharge  has  been  granted. 

§  120.  Refusal  to  obey  orders  or  answer  questions  of 
court.  The  Act  makes  it  a  basis  for  denying  a  discharge 
that  a  bankrupt,  in  the  course  of  bankruptcy  proceedings, 


(36)  In  re  Pincus,  144  Fed,  621. 

(37)  Sec.  14b  (5). 

(38)  In  re  Neeley,  134  Fed.  667. 


BANKEUPTCY  301 

refused  to  obey  any  lawful  order  or  to  answer  any  ma- 
terial question  approved  by  the  court  (39). 

NOTE. 

§  121.  Advantages  to  creditors  of  national  law  over 
diverse  state  laws.  ]\Ianufacturers,  bankers,  insurance 
companies,  wholesale  houses  of  all  kinds,  in  fact,  nearly 
all  commercial  operators  of  importance,  have,  under  the 
modern  advantages  of  telegraph,  telephone,  and  rapid 
transmission  of  the  mails  and  articles  of  commerce, 
spread  their  business  over  the  entire  United  States,  or  at 
least  into  one  or  more  neighboring  states.  Under  such 
conditions,  with  no  Federal  law  in  force  but  with  as  many 
state  laws  as  there  are  different  states,  it  is  necessary  that 
the  operator  be  familiar  with  the  insolvency  or  bank- 
ruptcy law  of  every  state,  its  peculiarities,  and  the  pos- 
sibilities under  it,  in  order  to  safeguard  his  rights.  Thus, 
if  the  state  law  where  the  debtor  resides  permits  prefer- 
ences, it  is  not  sufficient  merely  that  the  distant  creditor 
know  this  fact,  but  it  is  essential  that  he  be  exceedingly 
diligent  and  vigilant  in  order  to  compete  on  fair  terms 
with  other  creditors,  nearer  to  the  common  debtor,  and 
having  readier  access  to  him  and  to  the  courts  to  secure 
transfers  from  him  and  liens  and  attachments  against 
him. 

The  state  laws  permitting  preferences  and  legal  liens 
favor  the  diligent,  permitting  them  to  satisfy  their  claims 
in  full  to  the  exclusion  of  others.  They  foster  a  keen 
struggle  between  creditors  to  be  the  first  to  procure  a  lien 


(39)     Sec.  14b  (6). 


302  BANKRUPTCY 

or  preference,  and  tend  toward  inequality  among  cred- 
itors. The  Federal  law,  on  the  other  hand,  which  avoids 
preferences  and  legal  liens  procured  within  four  months 
of  bankruptcy,  stands  for  equality  among  creditors  and 
•eliminates  the  struggle  for  an  advantage  by  way  of  pref- 
erence or  legal  lien. 

Two  obvious  results  are  accomplished  by  the  Federal 
Act.  First,  the  work  of  the  commercial  credit  man  for 
large  concerns  is  greatlj^  simplified  and  made  safer.  The 
uniformity  sought  in  such  branches  of  the  law  as  that  of 
commercial  paper,  sales,  and  the  like,  which  have  been 
largely  accomplished  by  the  concerted  action  of  many 
■states  adopting  substantially  the  same  code  on  the  sub- 
ject, is  accomplished  in  bankruptcy  by  one  piece  of  legis- 
lation by  Congress,  the  work  of  many  legislatures  done  by 
one.  This  of  itself  would  seem  to  be  a  justification  for 
the  retention  at  all  times  of  a  national  bankruptcy  act.  If 
any  features  of  such  a  law  become  objectionable,  amend- 
ment should  be  resorted  to  and  not  repeal. 

Second,  the  spectacle  of  a  few  favored  creditors  ap- 
propriating a  debtor's  entire  property  to  satisfy  their 
claims,  to  the  exclusion  of  the  rest,  is  entirely  eliminated 
by  the  salutary  features  of  the  last  two  Federal  acts,  pre- 
venting preferences  and  liens  procured  by  legal  proceed- 
ings, while  the  debtor  is  insolvent.  While  some  states 
prohibit  preferences,  this  is  not  the  universal  rule.  Un- 
der the  operation  of  the  Federal  law  there  can  be  no 
doubt,  and  the  unseemly  race  of  assignees,  attachment, 
and  execution  creditors  to  be  the  first  to  seize  the  debtor's 
property  is  avoided,  as  well  as  the  injustice  to  the  less 
fortunate  creditors. 


JUDGMENTS 


BT 


JOHN  ROMAIN  ROOD, 

LiL.   B.    (University  of  Michigan) 

Professor  of  Law,  University  of  Michigan. 


JUDGMENTS. 

§  1.  Outline.  The  principal  points  to  be  considered  re- 
garding judgments  are:  (1)  their  nature,  essentials,  and 
kinds,  including  a  survey  of  the  elements  of  jurisdiction; 
(2)  the  record  of  the  judgment;  (3)  vacating  and  amend- 
ing judgments ;  and  (4)  the  effect  of  judgments.  These 
will  be  considered  in  the  order  named. 
Section  1.   Nature,  Essentials,  and  Kinds  of  Judgments. 

§2.  Judgment  defined.  Many  different  definitions  of 
a  judgment  have  been  given,  some  superior  on  one  ac- 
count, some  on  another.  Lord  Coke  said  that  a  judgment 
is  the  very  voice  of  law  and  right,  signifying  that  it  is 
the  application  of  the  wisdom  of  the  law  in  disposition 
of  the  particular  case.  A  more  practical  definition  is  that 
it  is  the  final  determination,  by  a  court  of  competent  juris- 


304  JUDGMENTS 

diction,  on  the  matter  submitted  to  it  by  the  complaint  oi 
some  person  or  persons;  which  is  usually  a  complaint 
against  other  persons,  but  may  be  a  mere  request  to  pass 
upon  matter  without  any  opposing  party,  such  as  adjudi- 
cation of  a  salvage  of  shipwrecked  goods  at  sea,  that  they 
are  wreckage  and  that  so  much  belongs  to  the  salvors  for 
saving  them.  In  examining  this  definition  it  is  necessary 
to  notice  that  many  orders  are  made  by  the  court  in  the 
progress  of  every  trial,  which  are  not  properly  judgments ; 
of  these  examples  are  seen  in  such  orders  as  that  the  case 
shall  go  over  to  the  next  term,  that  the  plaintiff  shall  give 
security  for  costs;  and,  in  addition  to  these,  are  rulings, 
that  this  evidence  is  not  competent  and  shall  be  excluded, 
and  the  like,  which  are  not  even  considered  as  orders.  The 
judgment,  properly  speaking,  is  the  final  disposition  of 
the  case,  though  not  necessarily  of  the  merits  of  the  dis- 
pute. Judgment  that  the  case  be  dismissed,  because  the 
plaintiff  has  failed  to  include  certain  persons  as  defend- 
ants who  should  be  included,  does  not  go  to  the  merits  of 
the  question  at  all,  and  in  no  way  prevents  the  immediate 
prosecution  of  a  new  suit  against  the  proper  parties,  in- 
cluding all  the  parties  to  the  present  suit ;  but  it  is  in  the 
strictest  sense  a  judgment,  because  it  puts  an  end  to  the 
particular  suit.  It  has  often  happened  that  appeals  have 
failed,  because  the  appeal  was  taken  before  judgment 
given,  the  parties  assuming  that  the  direction  that  such  a 
judgment  be  drawn  up  was  itself  a  judgment,  instead  of  an 
order  for  judgment.  Such  technical  distinctions  are  not 
conducive  to  justice,  nor  to  the  respect  for  the  courts  which 
should  be  entertained  by  the  people;  and  it  is  believed 


JUDGMENTS  305 

that  they  are  not  strictly  sound.  For  the  judgment  is  not 
the  entry  which  the  clerk  of  the  court  makes,  but  the  order 
which  the  court  makes,  of  which  the  clerk's  entry  is  only 
a  memorandum. 

§3.  Same:  Illustrations.  A  few  illustrations  will 
make  this  clear.  Sujopose  the  clerk  makes  an  entry  that 
judgment  was  given,  when  the  court  had  ordered  nothing 
of  the  kind.  Is  that  a  judgment?  It  has  been  held  that 
the  court  may  rectify  such  errors,  whenever  they  are  dis- 
covered, even  years  afterwards ;  but,  if  a  judgment  is  in 
fact  given  by  the  court,  and  the  judge  later  makes  up  his 
mind  that  he  was  wrong  in  the  judgment  he  gave,  that 
error  cannot  be  corrected  by  him  after  the  term  at  which 
the  judgment  was  pronounced.  Again,  it  is  clear  that  no 
execution  can  be  valid  unless  there  is  a  judgment  warrant- 
ing it ;  and  yet  it  has  been  held  in  several  states  that  an 
execution,  issued  after  the  judgment  is  pronounced  by  the 
court,  is  not  void,  merely  because  the  record  of  the  judg- 
ment was  not  written  up  till  after  the  execution  was  taken 
out  and  property  seized  under  it.  Again,  if  a  judgment 
is  rendered  in  vacation  time,  that  is  after  the  court  has 
adjourned  definitely  to  the  next  term,  or  without  day,  as 
it  is  called,  that  judgment  is  void  according  to  all  the 
authorities,  and  yet  it  is  admitted  by  all  that  it  is  all 
right  to  make  entry  in  vacation  time  of  the  judgments 
rendered  in  term  time.  Ordinarily,  the  official  record  is 
the  only  proper  evidence  to  prove  that  a  judgment  has 
been  given  by  the  court,  which  is  believed  to  have  had  as 
much  as  anything  to  do  in  creating  the  erroneous  notion 
that  the  record  entry  is  the  judgment ;  instead  of  the  true 


306  JUDGMENTS 

doctrine,  that  the  judgment  is  the  order  made  by  the  court, 
of  which  the  clerk's  record  is  the  contemporaneous,  official, 
historical  memorial.  Yet  it  has  happened  that  judgments 
have  come  into  question  in  later  cases,  and  proof  of  them 
has  been  allowed  by  other  evidence,  upon  showing  some 
extraordinary  accident  which  prevented  the  entry  ever 
being  made.  Such  was  the  case  of  a  justice  of  the  peace 
who  heard  the  parties,  and  at  the  end  of  the  hearing  pro- 
nounced judgment  upon  the  matter  orally  at  once,  but 
died  a  few  days  later,  without  having  made  any  docket 
entry  of  his  judgment  (1). 

§  4.  What  is  a  court?  As  a  judgment  is  a  final  deter- 
mination of  a  controversy  by  a  court,  it  follows  of  neces- 
sity that  the  order  is  not  a  judgment  unless  the  body  pro- 
nouncing it  was  a  court.  A  court  has  been  defined  as  a 
place  where  justice  is  judicially  administered;  because 
in  the  old  days  the  feudal  barons  assembled  their  followers 
in  the  open  space  in  their  castles  to  debate  and  decide  dis- 
putes between  any  of  these  followers.  But  the  word  court 
involves  more  in  its  modern  judicial  meaning  than  the 
place  where  the  meeting  is  held.  In  the  legal  sense,  a 
court  is  a  body  of  the  government,  duly  constituted  and 
assembled  for  the  purpose  of  deciding  such  matters  be- 
tween opposing  parties  as  are  brought  before  it  and  the 
law  creating  it  enables  it  to  decide.  It  is  necessary  that 
the  body  be  created  by  the  proper  governmental  authority. 
If  it  is  constituted  by  the  agreement  of  the  parties  sub- 
mitting the  question  for  decision  the  determination  it 
gives  is  not  a  judgment ;  it  is  at  most  only  an  award  of 


(1)     Ilickey  v.  Hinsdale,  8  Mich.  267. 


JUDGMENTS  307 

arbitrators.  If  the  body  was  created  by  rebels  or  insur- 
gents, and  not  by  the  legal  government,  its  determination 
would  not  even  be  an  award  of  arbitrators,  unless  the 
matter  was  submitted  to  it  by  consent  of  the  parties,  nor 
even  then  if  what  they  expected  was  a  judgment  of  a 
court;  that  is,  unless  their  agreement  included  the  crea- 
tion of  the  body  to  try  the  question,  and  not  merely  an 
agreement  to  submit  the  matter  to  a  body  supposed  to  be 
already  legally  created.  If  the  body  was  created  by  the 
proper  legislative  authority  as  a  court,  but  for  some 
reason  the  statute  was  unconstitutional,  it  has  been 
denied  that  the  body  assembled  and  acting  under  such  an 
invalid  law  is  not  even  a  de  facto  court.  If  the  body  was 
created  by  the  proper  legislative  authority  by  a  valid  law, 
it  is  not  a  court  unless  the  legislative  intent  expressed  by 
that  law  was  that  the  body  should  be  a  court.  If  the  legis- 
lature declares  that  the  supervisors  of  the  county  shall 
be  a  body  to  pass  on  the  bills  due  from  the  county  and 
order  their  payment,  it  does  not  follow  that  the  legisla- 
ture intended  that  the  board  of  supervisors  should  be 
a  court,  nor  that  their  determinations  should  be  judg- 
ments. Matters  are  not  brought  before  a  board  of  super- 
visors as  they  are  before  a  court,  by  issuing  a  summons, 
serving  it  on  the  opposite  party,  uniting  on  an  issue,  tak- 
ing testimony,  and  so  forth.  The  bill  is  filed  in  an  in- 
formal way.  Often  the  board  takes  it  up  in  the  absence 
of  the  parties.  They  are  entitled  to  no  hearing  nor  argu- 
ment. The  board  need  have  no  testimony,  and  may  de- 
cide on  their  own  information  and  opinions.  Such  a  de- 
termination is  no  judgment.    If  the  legislative  authority 


308  JUDGMENTS 

declares  by  a  valid  law  that  such  a  body  shall  be  a  court 
to  try  such  cases,  there  is  no  court  in  fact  till  the  au- 
thorized body  is  organized  and  assembled.  From  this  it 
follows:  (1)  that  the  legal  business  of  the  body  must 
be  judicial;  (2)  that  the  body  is  created  by  a  valid  law 
of  a  real  government;  (3)  that  it  is  properly  organized 
and  assembled,  which  includes  officers,  time,  and  place. 

§  5.  Elements  of  jurisdiction:  Compliance  with  stat- 
utory requirements.  Jurisdiction  has  been  defined  to  be 
the  power  to  hear  and  determine  a  matter  submitted. 
1.  In  order  for  a  court  to  possess  this  power  it  is  clear 
that  the  court  must  be  duly  and  legally  constituted  and 
regularly  assembled,  as  stated  in  the  preceding  subsec- 
tion. 2.  Further,  the  question  or  case  on  which  it  as- 
sumes to  act  must  be  of  the  class  in  which  the  law  of  the 
court's  creation  empowers  it  to  act;  if  it  be  a  criminal 
prosecution,  it  is  essential  to  jurisdiction  that  the  law 
under  which  the  court  acts  has  empowered  that  court  to 
sit  in  such  cases;  one  court  may  be  empowered  to  sit  in 
probate  of  wills,  and  another  to  try  for  alleged  crimes, 
and  yet  neither  court  be  empowered  to  sit  in  a  case  which 
would  be  proper  for  the  other  to  decide. 

3.  Another  essential  to  jurisdiction  is  that  the  law  de- 
fining the  court's  powers  has  enabled  it  to  make  such  a 
judgment  in  a  proper  case,  as  it  has  attempted  to  make  in 
the  given  case.  A  judgment  by  a  justice  of  the  peace  that 
a  man  be  hanged,  for  an  offense  of  which  he  is  charged 
before  such  justice,  would  ordinarily  be  absolutely  void, 
and  need  not  be  appealed  from;  for  in  no  case  at  all  is 
the  justice  enabled  to  give  such  a  judgment.    His  judg- 


JUDGMENTS  309 

ment  for  a  greater  amount  than  the  law  enables  him  to 
render  in  any  case  would  be  likewise  void,  though  the 
particular  case  justified  such  a  judgment.  But  suppose 
that  the  law  has  authorized  the  justice  to  try  cases  in- 
volving less  than  $300,  and  in  such  a  case  a  man  claims  a 
sum  less  than  $300  against  another,  but  gives  no  proof 
warranting  any  judgment  at  all.  It  is  clear  that  the  justice 
should  not  give  the  plaintiff  judgment  for  any  sum ;  but 
it  is  equally  clear  that  what  amounts  to  proof  of  a  case 
is  the  very  question  which  the  law  has  empowered  the 
justice  to  decide,  and  which  the  case  before  him  requires 
him  to  decide.  Power  to  decide  includes  power  to  decide 
either  way— to  decide  it  the  right  way  or  the  wrong  way— 
to  say  which  is  the  right  way,  and  what  the  proper  amount. 
If  the  justice  errs  on  this,  it  is  error  only ;  and  the  party 
aggrieved  by  this  erroneous  judgment  must  submit  to  it 
and  abide  by  it,  or  appeal  from  it  to  some  other  court 
to  have  it  corrected. 

§  6.  Same:  Submission  of  question  to  court.  4.  Another 
element  essential  to  jurisdiction  is  that  a  case  shall  have 
been  brought  before  the  court,  and  that  the  case  on  which 
the  court  assumes  to  pass  is  the  case  submitted  to  it  for 
decision.  The  court  cannot  decide  every  possible  question 
between  contending  parties,  merely  because  it  has  been 
asked  to  pass  on  a  particular  question ;  nor  can  it  act  of 
its  own  motion  on  any  question,  unless  a  question  has  been 
submitted  to  it  for  decision.  Courts  must  be  set  in  motion 
by  complaint  or  petition,  and  cannot  originate  a  case  of 
their  own  motion ;  but  when  the  case  is  once  before  it,  the 
court  may  dispose  of  it  on  motion,  or  of  its  own  motion. 


310  JUDGMENTS 

Suppose  a  man  brings  an  action  against  his  wife  to  settle 
title  to  land,  the  court  could  not  decree  a  divorce  between 
them  in  such  an  action,  though  the  proof  offered  on  the 
title  to  the  land  should  show  ample  ground  for  a  divorce ; 
for  that  is  not  the  point  submitted  to  the  court  for  de- 
cision. The  court  can  decide  only  what  is  submitted  to 
it  for  decision;  but  when  the  question  arises  as  to  what 
is  submitted,  we  get  into  a  much  more  difficult  field.  On 
this  the  general  proposition  is,  that  the  pleadings  need 
not  be  regular,  need  not  show  that  the  party  is  entitled 
to  what  he  asks  for,  need  not  be  so  good  but  that  the  case 
would  be  dismissed  because  of  the  defect,  if  the  point 
were  properly  raised;  it  is  enough  that  it  appears  that 
the  point  decided  was  the  point  the  party  wanted  decided, 
or  was  essential  to  the  decision  of  that  point. 

§7.  Same:  Judgments  binding  property.  5.  To  make  a 
judgment  binding  on  the  title  to  any  particular  property, 
it  is  essential  that  the  property  be  brought  within  the 
court's  control.  If  it  be  land  within  the  court's  territory, 
sufficiently  described  in  the  papers  in  the  case,  no  actual 
seizure  of  it  is  necessary  to  enable  the  court  to  give  judg- 
ment binding  on  the  title  to  it,  unless  the  statutes  under 
which  the  suit  is  prosecuted  require  that  to  be  done ;  and 
it  is  even  a  disputed  point  as  to  whether  failure  to  observe 
the  statutory  requirements  is  not  a  mere  irregularity, 
which  can  be  taken  advantage  of  only  in  a  direct  proceed- 
ing in  the  same  court  and  action,  or  by  appeal.  But  it  is 
essential  to  jurisdiction  of  the  thing,  that  the  purpose  of 
the  action  was  expressly  to  fix  the  right  to  that  property. 
If  the  property  was  at  a  place  out  of  the  court's  territory. 


JUDGMENTS  '  311 

no  judgment  it  can  render  can  bind  tlie  title  to  that  prop- 
erty, though  that  may  be  the  direct  purpose  of  the  action 
in  which  the  judgment  is  rendered  which  is  claimed  to 
bind  that  property.  Observe  that  what  is  here  stated  is 
that  the  title  to  the  property  is  not  determined  thereby. 
If  the  court  has  the  party  before  the  court,  it  may  order 
him  to  do  something  concerning  property  out  of  the  state, 
and  imprison  him  for  contempt  until  he  will  obey  the 
order.  If  he  escapes  without  doing  what  he  is  ordered 
to  do,  the  order  does  not  affect  the  title  to  the  property 
out  of  the  state.  This  doctrine  has  been  very  much 
theorized  upon  in  garnishment  of  debts  to  non-resident 
creditors  or  from  non-resident  debtors;  and  it  has  been 
claimed  that  the  debt  has  locality,  and  is  situated  where 
it  is  payable,  or  where  the  debtor  resides,  or  where  the 
creditor  to  whom  it  is  due  resides.  But  this  question  has 
now  been  finally  put  at  rest  by  the  Supreme  Court  of  the 
United  States  (la),  which  holds  that  one  who  owes  an- 
other a  debt  may  be  charged  as  garnishee  therefor,  wher- 
ever he  can  be  found  and  served  with  process,  regardless 
of  where  he  lives,  where  his  creditor  lives,  or  where  the 
debt  is  payable ;  and  that,  if  he  pays  the  debt  on  such  a 
garnishment,  that  payment  will  be  a  good  defense  to  any 
suit  by  his  creditor  for  it  in  the  same  or  any  other  state, 
provided  the  garnishee  notified  his  creditor  of  the  gar- 
nishment, so  as  to  give  him  an  opportunity  to  defend 
the  garnishment. 
§8.    Same:  Personal  judgments.    6.   Another  essential 

(la)     Chicago,  etc.  Ry.  v.  Sturm,  174  U.  S.  710;  Harris  v.  Balk,  198 
U.  S.  215. 

Vol.  X— 22 


312  JUDGMENTS 

to  jurisdiction  in  any  case  to  render  a  judgment  binding  on 
any  person  as  a  personal  charge,  wliicli  is  called  a  judg- 
ment in  personam,  is  that  the  person  to  be  so  bound  must 
have  been  duly  brought  into  court,  so  as  to  give  him  an 
opportunity  to  defend,  called  his  day  in  court,  before  such 
judgment  is  given  against  him.  He  may  thus  be  brought 
before  the  court  by  his  voluntary  formal  appearance  in 
the  court  and  submitting  to  its  jurisdiction;  or  by  mak- 
ing service  on  him  in  any  manner  which  he  may  have  ex- 
pressly or  impliedly  agreed  and  directed  in  advance  shall 
be  a  sufficient  service  on  him  in  such  a  case;  or  he  may 
be  brought  within  the  court's  jurisdiction,  so  as  to  enable 
the  court  to  decide  in  personam  against  him,  by  formal 
service  of  the  court's  process  on  him  in  person  at  any 
place  within  the  state,  provided  the  law  of  the  state  au- 
thorizes such  a  service.  But  any  statute  of  any  state  de- 
claring that  a  person  residing  out  of  the  state  may  be 
served  by  publication  of  process  in  the  state  or  personal 
service  on  him  out  of  the  state,  and  that  such  service  shall 
authorize  the  court  to  proceed  to  judgment  in  personam 
against  him  the  same  as  if  he  had  been  personally  served 
in  the  state,  would  be  in  violation  of  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States,  which 
declares  that  no  man  shall  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law  (2). 

§  9.  Same:  Opportunity  to  be  heard.  7.  Since  the  pur- 
pose of  service  of  process  is  to  enable  the  party  to  make 
defense,  it  follows  that  a  further  element  of  jurisdiction 
is  that  an  opportunity  to  be  heard  in  defense  shall  have 


(2)     Pennoyer  v.  Nefe,  05  U.  S.  714. 


JUDGMENTS  313 

been  given  the  party  before  passing  judgment  upon  him. 
For,  if  the  court  holds  that  the  party  summoned  is  one 
not  entitled  to  standing  in  the  court,  and  thereupon  orders 
his  appearance  stricken  out,  and  immediately  enters  judg- 
ment against  him,  that  judgment  is  absolutely  void  and 
need  not  be  appealed  from.  It  must  not  be  inferred  from 
this  statement  that  a  judgment  is  void,  merely  because 
the  party  was  not  allowed  to  make  his  defense  at  so  late 
a  time,  or  not  allowed  to  make  the  particular  defense  he 
wished  to.  The  doctrine  extends  only  to  denial  of  all  right 
to  be  heard  at  all. 

Beyond  the  points  made  above,  there  is  a  wide  field  in 
which  no  positive  statements  can  safely  be  made,  in  which 
one  court  has  held  that  a  departure  from  the  prescribed 
mode  of  procedure  was  fatal,  and  another  court  has  held 
that  it  was  only  an  irregularity. 

§  10.  Summary  of  essentials  of  judgments.  It  has 
seemed  necessary  to  give  thus  much  attention  to  the  vexa- 
tious subject  of  jurisdiction,  in  order  to  get  a  clear  and 
complete  conception  of  what  a  judgment  is;  and  this 
brings  us  to  the  end  of  the  first  topic,  the  definition  of  a 
judgment;  and  we  may  now  state  the  conclusion  that  a 
judgment  is  the  sentence  of  the  law  pronounced  by  the 
court  upon  the  matter  contained  in  the  record.  From  the 
foregoing  review  of  our  definition,  we  may  discern  the 
following  essentials  of  a  judgment:  (1)  If  nothing  be 
done,  if  there  be  no  pronouncement,  clearly  there  is  no 
judgment.  (2)  If  the  pronouncement  be  not  in  the  na- 
ture of  a  sentence,  it  is  no  judgment.  (3)  If  pronounced 
by  any  body  other  than  the  court,  it  is  no  judgment. 


314  JUDGMENTS 

(4)  If  upon  matter  that  court  is  given  no  authority  by- 
law to  hear  and  determine,  it  is  no  judgment.  (5)  If 
that  court  is  not  given  authority  by  law  to  pronounce  such 
a  judgment  in  any  case,  it  is  no  judgment.  (6)  If  the 
matter  pronounced  upon  be  not  before  the  court,  it  is  no 
judgment.  (7)  It  is  not  a  judgment  in  personam  unless 
the  person  pronounced  against  was  before  the  court. 

§  11.  Kinds  of  judgments.  Judgments  may  be  classi- 
fied from  various  points  of  view,  according  to  the  pur- 
pose intended  to  be  served  by  the  classification.  The  fol- 
lowing classifications  are  some  of  the  most  important: 

(1)  As  to  their  effect  in  disposing  of  the  action,  judg- 
ments are  either  interlocutory  or  final.  As  we  have  seen, 
only  the  final  are  really  judgments.  Final  judgments  are 
those  which  completely  dispose  of  the  particular  action, 
though  not  necessarily  of  the  controversy  involved  in  it. 

(2)  Judgments  are  either  absolute  or  nisi,  according  as 
they  are  to  have  effect  at  all  events,  or  only  upon  the 
happening  or  not  happening  of  some  specified  event.  (3) 
As  to  the  place  where  rendered,  judgments  are  either 
domestic  or  foreign.  A  domestic  judgment  is  one  ren- 
dered by  a  court  of  the  same  sovereignty.  A  foreign 
judgment  is  one  rendered  by  any  other  court.  (4)  As  to 
the  state  of  the  pleadings  at  the  time  the  judgment  was 
rendered,  it  is:  (a)  on  an  issue  of  law;  (b)  on  an  issue 
of  fact;  (c)  when  the  pleadings  raise  no  issue;  or  (d)  on 
abandonment  of  the  suit  by  the  plaintiff.  (5)  As  to  the 
binding  effect,  the  judgment  is  either  valid  or  void ;  and 
if  valid  is  either  in  personam  or  in  rem,  and,  if  in  rem, 
is  either  in  rem  generally  or  as  to  particular  persons  or 


JUDGMENTS  315 

purposes.  The  difference  in  the  binding  effect  of  judg- 
ments in  personam,  and  judgments  in  rem,  either  gen- 
erally or  specially,  will  be  explained  more  fully  when  we 
come  to  consider  the  effect  of  judgments. 

Section  2.    Recoed  of  Judgment. 

§  12.  Definition.  The  record  in  judicial  proceedings  is 
the  written  history  of  the  proceedings  and  transactions 
of  the  court,  kept  as  a  perpetual  memorial  therof. 

§  13.  Former  English  practice.  In  primitive  times  all 
the  proceedings  were  oral  in  open  court,  the  declaration, 
pleadings,  judgment,  everything;  and  the  judge  or  his 
clerk  took  rough  notes  of  the  proceedings  as  they  pro- 
gressed. These  were  finally  amplified  on  parchment,  and 
filed  as  a  perpetual  memorial.  When  the  pleadings  came 
to  be  made  in  writing  on  paper,  this  custom  of  copying 
them  on  parchment  was  continued.  As  soon  as  the  ver- 
dict had  been  found  and  reported,  the  signature  of  the 
proper  officer  was  obtained  on  a  sheet  of  paper  called  a 
final  judgment  paper.  This  was  called  signing  judgment. 
As  soon  as  this  was  done,  the  successful  party  might  make 
the  record  on  parchment.  This  was  called  entering  the 
judgment  of  record;  and  when  this  parchment  copy  had 
been  filed  it  was  called  the  judgment  roll.  Leaving  the 
roll  in  the  treasury  of  the  court  was  called  filing  the 
record.  The  clerk  kept  a  book  in  which  all  these  records 
were  indexed.  Making  the  entry  in  the  index  was  called 
docketing  the  judgment. 

§14.    Same:     Example.     The  following,  copied  from 


316  JUDGMENTS 

Wentworth's  Pleading,  will  give  some  idea  of  the  nature 
of  these  records : 

ENGLISH    JUDGMENT    BOLL. 

Pleas  before  our  lord  the  king  at  Westminster  of  the  Term  of  St. 
Michael,  the  twenty-sixth  year  of  the  reign  of  our  sovereign  lord  George 
the  Third,  by  the  grace  of  God  of  Great  Britain,  France,  and  Ireland, 
king,  defender  of  the  faith,  and  so  forth,  in  the  year  of  Our  Lord  1785.-- 
Roll,  Stormont  and  Way. 

London,  Be  it  remembered,  that  in  the  Term  of  the  Holy  Trinity  last 
past,  before  our  lord  the  king  at  Westminster,  came  Robert  Hunter,  by 
Giles  Blake  his  attorney,  and  brought  into  the  court  of  our  said  lord  the 
king  then  there  his  certain  bill  against  John  Bermingham,  being  in  the 
custody  of  the  marshalsea  of  our  said  Lord  the  King,  before  the  king 
himself,  of  a  plea  of  trespass  on  the  case,  and  there  are  certain  pledges 
for  the  prosecution,  to  wit,  John  Doe  and  Richard  Doe;  which  bill  fol- 
lows in  these  words,  to  wit;  London,  to  wit.  Robert  Hunter  complains 
of  John  Bermingham— [here  follows  the  bill  In  full  except  the  signature, 
then  the  imparlance,  plea,  and  continuance]. 

Afterwards,  that  is  to  say,  on  the  day  and  at  the  place  within  men- 
tioned, before  the  Honorable  Francis  Buller  esquire,  the  justice  within 
mentioned,  John  Way  gentleman  being  associated  with  him,  according  to 
the  form  of  the  statute  in  such  case  made  and  provided,  came  as  well  the 
within  named  Robert  Hunter,  as  the  within  named  John  Bermingham, 
by  their  respective  attorneys  within  mentioned,  and  the  jurors  of  the 
jury  within  mentioned  being  called  likewise  came;  who,  being  tried  and 
sworn  to  speak  the  truth  concerning  the  matters  within  contained,  and 
after  evidence  being  given  to  them  of  and  upon  the  within  contents,  went 
from  the  bar  of  the  court  to  discuss  their  verdict  of  and  upon  the  premises, 
and  after  the  said  jury  has  discoursed  and  agreed  among  themselves  they 
come  back  to  the  bar  and  say  that  the  said  John  Bermingham  did  under- 
take and  promise  in  manner  and  form  as  in  the  said  declaration  is  com- 
plained against  him;  and  they  assess  the  damages  of  the  said  Robert 
Hunter  on  occasion  of  the  premises  mentioned  in  the  sum  of  fifty-eight 
pounds  three  shillings  and  sixpence,  over  and  above  his  costs  and  charges 
by  him  laid  out  in  his  suit  in  this  behalf  and  for  those  costs  and  charges 
to  forty  shillings;  Therefore  it  is  considered  that  the  said  Robert  Hunter 
recover  against  the  said  John  Bermingham  his  damages  aforesaid,  by  the 
jury  aforesaid  in  manner  and  form  assessed,  and  also  four  pounds  and 
thirteen  shillings  for  his  costs  and  charges  aforesaid  to  the  said  Robert 
by  the  court  of  our  lord  the  king  now  here  adjudged  of  increase,  with 
his  assent;  which  said  damages  in  whole  amount  to  sixty-four  pounds 
sixteen  shillings  and  sixpence,  and  the  said  John  Bermingham  is  in 
mercy. 


JUDGMENTS  317 

§  15.    American  practice:    Formal  record  of  judgment. 

The  English  practice  is  followed  to  a  great  extent  in  some 
states;  but  the  entries  are  usually  required  to  be  made 
by  the  clerk  of  the  court  instead  of  by  the  attorney,  in 
books  instead  of  on  loose  sheets,  and  on  paper  instead  of 
parchment.  Probably  no  court  in  this  country  has  its 
records  kept  in  parchment.  The  statutes,  court  rules,  and 
decisions  of  each  state  must  be  examined  in  order  to 
learn  the  proper  practice  there ;  but  it  may  be  worth  while 
to  make  a  few  suggestions  as  to  the  practice  generally. 
In  New  York  the  successful  party  must  make  a  judgment 
roll  for  the  clerk,  by  preparing  exact  copies  of  all  the 
papers  on  file  in  the  case  and  attaching  them  together, 
or  by  attaching  the  original  papers  together,  and  in  either 
event  adding  a  copy  of  the  judgment  as  entered  in  the 
judgment  book,  and  filing  the  whole  with  the  clerk ;  or  the 
clerk  may  at  his  option  make  up  the  record  himself  (2a). 
So,  in  Minnesota  and  the  Dakotas,  except  that  it  is  the 
duty  of  the  clerk  to  make  up  the  roll  (3).  So,  in  Wis- 
consin, unless  the  party  shall  furnish  the  roll  to  the  clerk. 
In  California  the  rule  is  the  same,  except  that  the  clerk 
makes  up  the  roll  by  attaching  together  the  original  sum- 
mons, proof  of  service,  pleadings,  a  copy  of  the  verdict, 
the  bill  of  exceptions  if  any  has  been  filed,  and  a  copy  of 
the  judgment  as  entered  in  the  judgment  book  (3a).  In 
each  of  these  states  the  statutes  also  require  the  clerk  to 
enter  the  judgment  at  large  in  a  book  called  the  judgment 
book,  and  it  is  a  copy  of  this  entry  that  completes  the 

(2a)     Knapp  v.  Roche,  82  N.  Y.  366. 
(3)     Locke  V.  Hubbard,  9  S.  Dak.  364. 
(3a)     Cal.  Code  Civ.  Proc.   (1895),  §  670. 


318  JUDGMENTS 

judgment  roll.  In  each  of  these  states,  also,  the  clerk  is 
required  to  keep  an  index  of  judgments,  usually  called  the 
judgment  docket,  or  the  judgment  and  execution  docket, 
in  which  he  enters  the  names  of  the  parties  to  the  judg- 
ment, its  date  and  amount,  and  whatever  is  done  toward 
executing  or  satisfying  it. 

§  16.  Same:  Journal  entries  and  files.  In  Illinois, 
Indiana,  Iowa,  and  Ohio,  the  practice  is  more  like  the 
practice  in  Michigan,  which  more  nearly  resembles  the 
primitive  than  the  modern  English  practice  (4).  No  for- 
mal record  is  made  up  at  all,  but  the  files  in  the  case  and 
the  entries  made  by  the  clerk,  in  the  journal  of  the  pro- 
ceedings of  the  court  while  in  session,  stand  in  the  place 
of  the  formal  record.  According  to  this  practice,  the 
files  in  the  case  are  treated  as  a  part  of  the  record;  and 
such  action  taken  by  the  court  in  the  case  as  does  not 
appear  from  an  inspection  of  the  files,  is  shown  by  the 
journal.  But  in  these  states  the  clerk  is  required  to  keep 
an  index  or  indexes,  as  in  the  other  states,  called  a  docket, 
and  showing  the  names  of  the  parties  to  each  judgment, 
its  amount,  its  date,  and  what  has  been  done  in  the  way 
of  enforcing  it  or  satisfying  it. 

§  17.  Same:  Example.  A  fair  idea  of  the  character 
of  the  journal  entries  will  be  obtained  by  examining  the 
following: 

JOUBNAL  ENTBIES  IN  MICHIGAN  CIECUIT  COITBT. 

Monday,  May  7th,  A,  D.  1900. 
At  a  regular  session  of  the  Circuit  Court  for  the  county  of  Washtenaw, 
commenced  and  held  at  the  court  house  in  the  city  of  Ann  Arbor,  on  the 


(4)  Jasper  v.  Schlessinger  (per  Moran,  J.),  22  111.  App.  637;  Gal- 
braith  v.  Sidner,  28  Ind.  142;  Campbell  v.  Ayres,  G  Iowa,  339;  Brown  v. 
Barugrover,  82  Iowa,  204 ;  Emery  v.  Whitwell,  6  Mich.  474,  480. 


JUDGMENTS  319 

seventh  day  of  May  in  the  year  of  our  Lord  one  thousand  nine  hundred, 
1900. 

Present,  the  Hon.  E.  D.  Kinne, 

Circuit  Judge. 
The  court  opened  for  business  in  due  form  at  ten  a.  m. 

[Here  follow  several  entries  concerning  criminal  cases,  then  the  fol- 
lowing.] 

Ella  Glazier 

V. 

The  City  of  Ypsilanti. 

In  this  cause,  the  parties  being  in  court  by  their  respective  attorneys 
ready  for  trial,  thereupon  came  a  jury  of  twelve  good  and  lawful  men, 
to  wit,  Michael  P.  Alber,  John  Volz,  Theodore  Mohrbox,  George  Chap- 
man, George  Greske,  Robert  Campbell,  Burt  Martin,  Ray  Buckalew, 
Frank  Gilpeu,  William  Dolan,  Gottlob  Hutzel,  and  August  Otto,  who, 
being  duly  impaneled  and  sworn  well  and  truly  to  try  the  issue  between 
the  parties,  sat  together  and  heard  the  allegations  and  proofs  of  the 
parties  until  the  hour  of  adjournment. 

Whereupon  the  Court  adjourned  till  tomorrow  at  nine  a.  m. 

[Signed]         E.  D.  Kinne,  Circuit  Judge. 

Tuesday,  May  8th,  A.  D.  1900. 
Court  met  pursuant  to  adjournment  and  opened  for  business  in  due 
form  at  nine  a.  m. 

Ella  Glazier 

V. 

The  City  of  Ypsilanti. 

The  jury  heretofore  impaneled  and  sworn  in  this  cause  sat  together  and 
heard  further  proofs,  the  arguments  of  the  attorneys  for  the  respective 
parties  and  the  charge  of  the  court,  and  retired  from  the  bar  under  the 
charge  of  Charles  Dwyer,  an  officer  of  the  court  duly  sworn  for  that  pur- 
pose, to  consider  their  verdict;  and,  after  being  absent  for  a  time,  re- 
turned into  court,  and  say  upon  their  oaths  that  the  city  of  Ypsilanti  is 
guilty  in  manner  and  form  as  the  plaintiff  has  in  her  declaration  in  this 
cause  complained  against  it;  and  they  assess  the  damages  of  the  said 
Ella  Glazier  on  occasion  of  the  premises,  over  and  above  her  costs  and 
charges  by  her  about  her  suit  in  this  behalf  expended,  at  the  sum  of  six 
hundred  dollars ;  therefore,  on  motion  of  A.  J,  Sawyer  &  Son,  attorneys 
for  said  plaintiff,  it  is  considered  and  adjudged  by  the  court  now  here 
that  Ella  Glazier  do  recover  against  the  said  city  of  Ypsilanti  the  said 
sum  of  six  hundred  dollars,  together  with  her  costs  and  charges  to  be 
taxed,  and  that  execution  do  issue  therefor. 

[Here  follow  the  entry  in  the  next  case  and  the  other  proceedings  for 
the  day,  signed  at  the  end  by  the  judge  as  on  the  previous  day.] 


320  JUDGMENTS 

§  18.  Same:  Justice  court  records.  What  is  above 
stated  has  reference  only  to  records  in  the  superior  courts. 
Justices  of  the  peace  usually  have  what  is  called  a  docket 
in  which  they  enter,  under  the  caption  of  each  case,  in 
ledger  form  rather  than  in  the  form  of  a  journal,  a  minute 
of  whatever  is  done  in  the  case,  from  the  issuing  of  the 
original  process  to  the  return  of  satisfaction  on  the 
execution. 

§19.  Entering  and  amending  record.  The  record 
should  be  an  accurate  contemporaneous  history  of  the  pro- 
ceedings, showing  all  the  essential  facts.  But  failure  of 
the  clerk  to  make  up  the  record  during  the  term  does  not 
deprive  him  of  power  nor  relieve  him  from  the  duty  to 
make  it  up  later.  The  court  may,  of  its  own  motion,  order 
the  record  made,  even  after  years  of  neglect.  When  the 
entries  have  been  made  the  clerk's  powers  cease.  No  man 
would  be  safe  if  the  clerk  could  change  the  records  to 
suit  his  convenience.  If  he  learns  that  his  version  of  the 
proceedings  does  not  accord  with  the  facts,  he  cannot 
rectify  his  error ;  but  the  court  may  at  any  time  order  any 
part  of  the  entries  to  be  so  changed  as  to  accord  with 
what  was  done.  For  this  purpose,  notice  to  the  parties 
is  not  jurisdictional ;  though  it  ought  always  to  be  given, 
to  enable  them  to  show  any  reason  why  the  change  should 
not  be  made ;  and  a  party  prejudiced  by  the  omission  may 
have  the  amending  order  vacated  for  that  reason.  The 
court  should  not  rashly  conclude  that  the  entry  is  in- 
accurate; and  many  courts  hold  that  no  change  can  be 
made  on  the  unsupported  recollection  of  the  judge  and 
spectators,  but  only  when  the  fact  appears  on  the  face  of 


JUDGMENTS  321 

some  of  the  papers  in  the  case.  This  makes  the  clerk 
more  powerful  than  the  court.  On  the  other  hand,  it  is 
said  that  the  trial  court  is  the  only  judge  of  the  compe- 
tency and  sufficiency  of  the  evidence  to  prove  the  fact. 
Yet,  should  not  a  court  of  review  compel  the  correction 
of  an  indisputably  erroneous  statement  in  the  record? 
The  right  to  a  day  in  court  is  nothing  without  the  right 
to  have  the  proceeding  correctly  recorded  (5). 

§  20.  Questions  regarding  essentials  of  record.  What 
is  a  sufficient  record  is  a  question  that  may  arise:  (1)  in 
the  same  proceeding;  or,  (2)  in  another  proceeding,  (a) 
in  the  same  court,  or  (b)  in  some  other  court.  If  in  the 
same  court,  though  in  another  proceeding,  want  of  record 
evidence  of  any  essential  facts  can  usually  cause  little 
trouble,  provided  you  can  convince  the  judge  that  these 
facts  existed;  for  he  may  then  order  the  objection  re- 
moved on  the  spot,  by  amending  the  record  so  as  to  supply 
the  defect  (6). 

§  21.  How  far  presumptions  aid  the  record.  But  if  the 
question  arises  in  another  court,  the  result  is  likely  to  be 
more  serious.  In  suoh  cases  it  is  material  to  inquire 
whether  the  court  in  which  the  judgment  was  rendered 
was  one  of  special  and  limited  jurisdiction,  or  one  of  gen- 
eral jurisdiction ;  and,  if  the  latter,  whether  the  particular 
proceeding  came  within  its  general  powers,  or  was  some 
extraordinary  statutory  proceeding,  of  which  it  had  juris- 


(5)  For  authorities  on  the  matters  in  this  subsection  see:  Balch  v. 
Shaw,  7  Cush.  2S2 ;  Hughes  v.  Streeter,  24  111,  647;  Commonwealth  v. 
Magee,  8  Pa,  St.  240.  Justices  of  the  peace  have  been  held  not  to  possess 
the  power  to  change  their  records  or  add  to  them  when  once  entered. 
King  V,  Bates,  80  Mich,  367,  and  cases  cited, 

(6)  Dewey  v.  Peeler,  161  Mass.  135. 


322  JUDGMENTS 

diction  by  virtue  of  the  statute.  If  tlie  court  was  a  su- 
perior court  of  general  jurisdiction,  and  the  proceeding 
in  question  was  within  the  scope  of  its  general  powers, 
there  is  a  presumption  that  all  the  facts  existed  to  give  it 
jurisdiction  of  the  matter  and  of  the  parties,  and  such 
facts  need  not  be  shown  by  the  record.  But  if  what  was 
done  to  obtain  jurisdiction  is  stated  in  the  record,  there 
is  no  presumption  that  anything  else  was  done,  though 
essential  to  obtain  jurisdiction  (7).  The  rule  is  different 
with  respect  to  courts  of  special  and  limited  jurisdiction, 
and  with  courts  of  general  jurisdiction  acting  under  an 
extraordinary  statutory  authority.  In  such  cases,  accord- 
ing to  most  courts,  there  is  no  presumption  of  law  in  favor 
of  their  jurisdictions.  The  jurisdictional  facts  must  then 
affirmatively  appear  from  sufficient  evidence  or  proper 
averments  in  the  record,  or  the  judgment  will  be  deemed 
void  (8). 

§22.  What  must  always  appear.  But  besides  the 
above,  all  of  the  following  must  always  appear :  1.  That 
what  is  offered  was  really  intended  as  a  record  by  the 
court  whose  judgment  it  records.  2.  Who  were  the 
parties  in  whose  favor  and  the  parties  against  whom  the 
judgment  was  rendered.  3.  That  judgment  was  ren- 
dered, and  what  that  judgment  was ;  if  for  damages,  how 
much;  if  for  property,  what  property.  No  particular 
form  of  words  is  ever  necessary.  It  is  well  enough  if  the 
substance  can  be  gathered  from  the  record  as  a  whole. 
It  need  not  show  the  names  of  the  jury,  the  form  of  the 


(7)  Ilahn  v.  Kelly.  34  Cal.  391,  405. 

(8)  Galpin  v.  Page,  18  Wall.  350,  366. 


JUDGMENTS  323 

action,  or  the  evidence  on  which  the  judgment  was  based ; 
and  need  not  be  signed  by  the  judge,  unless  the  statute 
requires  it  (9). 

§23.  Conclusiveness  of  record:  Early  doctrine.  "The 
rolls,"  said  Lord  Coke,  *' being  the  records  or  memorials 
of  the  judges  of  the  courts  of  record,  import  in  them  such 
uncontrollable  credit  and  verity,  as  they  admit  no  aver- 
ment, plea,  or  proof  to  the  contrary.  .  .  .  And  the 
reason  thereof  is  apparent;  for  otherwise  there  should 
never  be  any  end  of  controversies,  which  should  be  in- 
convenient. .  .  .  During  the  term  wherein  any  ju- 
dicial act  is  done,  the  record  remaineth  in  the  breast  of 
the  judges  of  the  court,  and  in  their  remembrance,  and 
therefore  the  roll  is  alterable  during  that  term,  as  the 
judges  shall  direct.  But  when  the  term  is  passed,  then 
the  record  is  in  the  roll,  and  admitteth  no  alteration,  aver- 
ment, or  proof  to  the  contrary"  (10). 

§  24.  Same:  Modem  limitations.  This  doctrine  is 
necessary  that  there  may  be  an  end  of  disputes.  But 
when  applied  in  its  pristine  rigor  to  all  cases  and  under 
all  conditions,  it  was  too  harsh  and  unreasonable  to  stand. 
It  would  be  hard  to  say  exactly  how  much  of  it  remains. 
The  modem  decisions  upon  it  are  very  numerous,  and  far 
from  uniform;  yet  the  following  propositions  may  be 
stated  as  settled  beyond  dispute  (11) : 

1.  Statements  in  the  record  may  always  be  disputed 
in  all  proceedings  instituted  for  the  purpose  of  proving 


(9)  11  Ency.  PI.  &  Pr.  925,  ff. 

(10)  Coke  Lit,  p.  2C0.     See  also,  3  Bl.  Com.  407. 

(11)  See  Black,  Judgments,  §§  288,  289,  335,  416-19  ;  Michaels  v.  Stork, 
52  Mich.  260. 


324  JUDGMENTS 

the  falsity  of  the  record,  to  the  end  that  it  may  be  so 
amended  as  truly  to  state  the  facts,  or  that  the  proceed- 
ing may  be  declared  void  or  limited  in  its  effect,  because 
some  essential  facts  alleged  did  not  exist. 

2.  Statements  in  the  record  may  be  disputed,  and  al- 
ways might  be,  in  actions  by  the  party  injured  against 
the  oflBcer  making  the  false  entry  to  recover  the  damages 
resulting  from  his  wrongful  act. 

3.  Strangers  to  the  proceeding  are  not  concluded  by 
statements  of  fact  made  in  the  record  so  far  as  their  in- 
terests are  affected.  But  even  against  strangers  the  judg- 
ment record  is  competent  and  often  the  only  competent 
evidence  as  to  the  facts  occurring  in  court  which  the  judg- 
ment should  record,  as,  that  judgment  was  rendered,  and 
what  that  judgment  was. 

4.  In  actions  on  foreign  judgments,  the  defendant  may 
show  that  the  judgment  is  void  because  some  jurisdictional 
fact  alleged  in  the  record  did  not  exist. 

§  25.  Doctrine  does  not  apply  to  inferior  courts.  Per- 
haps all  has  been  said  that  can  be  stated  with  assurance. 
There  is  a  fundamental  distinction  made  in  this  connec- 
tion between  superior  courts  and  inferior  courts.  We 
have  seen  that  there  is  a  presumption  in  favor  of  the 
jurisdiction  of  superior  courts,  though  the  facts  are  not 
stated,  and  that  there  is  no  such  presumption  with  regard 
to  the  jurisdiction  of  inferior  courts.  As  to  the  latter, 
most  courts  hold  that  extrinsic  evidence  cannot  be  ad- 
mitted to  prove  that  to  have  been  done  as  to  which  the 
record  is  silent;  but  there  are  decisions  the  other  way. 
Yet,  if  all  jurisdictional  facts  are  alleged,  and  it  appears 


JUDGMENTS  325 

from  the  record  that  those  facts  were  tried  and  ju- 
dicially found,  that  finding  cannot  be  collaterally  con- 
tradicted (12). 

§  26.  Records  of  superior  domestic  courts  conclusive  on 
collateral  attack.  When  the  records  of  the  judgments  of 
superior  domestic  courts  do  not  state  the  existence  of 
jurisdictional  facts,  nor  state  what  was  done  to  obtain 
jurisdiction,  some  courts  hold  that  the  existence  of  such 
facts  may  be  denied  and  disproved  collaterally  to  impeach 
the  judgment;  but  the  weight  of  authority  seems  to  be 
the  other  way.  There  is  perhaps  but  one  state,  New  York, 
in  which  it  is  held  that  the  record  of  the  judgment  of  a 
superior  court  may  be  impeached  collaterally  by  contra- 
dicting and  disproving  the  statements  in  the  record.  This 
rule  is  generally  enforced,  though  it  be  alleged  that  the 
record  was  fraudulently  made  up  to  appear  as  if  juris- 
diction had  been  obtained  (13). 

Section  3.  Vacating,  Amending,  and  Modifying 
Judgments. 
§27.  Record  and  judgment  distinguished.  It  seems 
superfluous  to  remark  that  under  this  head  we  are  not 
discussing  amendments  of  the  record,  a  topic  given  con- 
siderable attention  when  we  were  speaking  of  the  record. 
But  amendments  of  the  record  and  amendments  of  the 
judgment  are  often  treated  together  in  the  most  confusing 
manner  bv  writers  on  this  subject;  and  it  is  frequently 


(12)  King  V.  Bates,  80  Mich.  3G7  (cases)  ;  Black  on  Judgments,  §§  282, 
287. 

(13)  Freeman  on  Judgments  §  133 ;  Hahn  v.  Kelly,  34  Cal.  391 ;  Fer- 
guson V.  Crawford,  70  N.  Y.  253 ;  Haven  v.  Owen,  121  Mich.  51. 


326  JUDGMENTS 

impossible  to  tell  from  the  reports  of  decisions  whether 
the  amendment  under  consideration  was  an  amendment  of 
the  record  or  an  amendment  of  the  judgment.  The  judg- 
ment is  the  sentence  of  the  law,  the  record  its  written 
history.  The  two  are  entirely  distinct,  and  the  rules  con- 
cerning amendments  of  them  are  very  different.  There- 
fore, be  it  remembered  that  we  are  now  concerned  only 
with  vacating  and  modifying  the  judgment. 

§  28.  What  courts  may  vacate,  modify,  and  amend  judg- 
ments. 1.  Justices  of  the  peace  and  similar  inferior  courts 
are  generally  held  to  possess  no  power  to  modify  judg- 
ments they  have  rendered,  except  in  so  far  as  that  power 
is  conferred  upon  them  by  express  statute.  They  cannot 
open  their  judgments,  grant  new  trials,  or  even  set  aside 
verdicts  rendered  by  their  juries. 

2.  Only  the  court  that  rendered  the  judgment  can 
modify  or  vacate  it.  The  judge  cannot  do  it  during  vaca- 
tion. A  court  to  which  it  has  been  taken  by  transcript 
cannot  overhaul  it.  The  legislature  cannot  by  statute 
vacate  it,  for  that  is  judicial  action.  Courts  of  supervision 
and  review  may  reverse  or  annul  judgments  of  lower 
courts,  on  appeal,  error,  certiorari,  and  the  like ;  but  that 
is  an  entirely  different  matter. 

3.  All  superior  courts  of  general  jurisdiction  possess 
the  power  to  vacate,  open,  or  modify  their  judgments  on 
proper  and  seasonable  application,  unless  forbidden  by 
statute.    This  power  was  conceded  at  common  law  to  all 


JUDGMENTS  327 

the  superior  courts.  It  exists  independently  of  any 
statute  (14). 

§29.  Such  action  during  the  term.  Until  the  final 
judgment  has  been  rendered  the  court  may,  on  the  appli- 
cation of  anyone  interested  or  even  of  its  own  motion, 
modify  or  undo  anything  it  has  done  in  the  cause  at  the 
same  or  any  previous  term.  Until  the  end  of  the  term  at 
which  the  final  judgment  is  rendered,  the  judgment  is  said 
to  be  in  the  breast  of  the  court,  and  the  power  above  men- 
tioned continues  unabated,  though  a  new  trial  has  already 
been  denied  and  a  bill  of  exceptions  settled.  Moreover, 
the  term  lasts  till  the  first  day  of  the  succeeding  term 
unless  the  court  sooner  adjourns  sine  die  (15). 

§  30.  Common  law  remedies  after  the  term.  But  if  the 
courts  were  permitted  to  keep  causes  within  their  power 
indefinitely,  alternately  changing  from  one  side  to  the 
other,  the  remedy  might  be  more  intolerable  than  the 
wrong  for  which  redress  was  sought.  The  interests  of 
society  demand  that  somewhere  there  should  be  an  end 
of  the  controversy.  Accordingly,  the  rule  of  the  common 
law  was  that  the  cause  passed  beyond  the  power  of  the 
court  with  the  ending  of  the  term  in  which  the  final  judg- 
ment was  rendered,  unless  some  proceeding  to  set  aside 
the  judgment  had  been  commenced  within  that  term  and 
remained  undisposed  of.  After  that  time  the  only  re- 
course was  by  commencing  a  new  action  (16) :    (1)  of 


(14)  For  the  matters  in  this  subsection  see  12  Ency.  PI.  &  Pr.  738; 
Black  on  Judgments  §§297,  298;  Nelson  v.  Guffey,  131  Pa.  St.  289; 
Kemp  V.  Cook,  18  Md.  130 ;  Bronson  v.  Schulten,  104  U.  S.  410. 

(15)  Huber  Mfg.  Co.  v.  Sweny,  57  Ohio  St.  169;  Jansen  v.  Grimshaw, 
125  111.  468 ;  Jasper  v.  Schlessinger,  22  111.  App.  637. 

(16)  All  of  the  following  actions  are  discussed  in  3  Bl.  Com.  402-411. 

Vol.  X— 23 


328  JUDGMENTS 

attaint,  for  relief  against  a  false  verdict;  (2)  of  deceit, 
for  relief  against  frand  in  real  actions;  (3)  of  error,  to 
remove  the  cause  to  a  court  of  review  to  correct  errors  of 
law  appearing  on  tlie  face  of  its  record;  (4)  of  error 
coram  nobis  if  tlie  cause  was  in  the  king's  bench,  of  error 
coram  vobis  if  in  the  common  pleas,  by  which  errors  of 
fact  affecting  the  validity  of  the  proceeding  (such  as  that 
the  defendant  was  insane,  an  infant,  feme  covert,  or  died 
before  judgment)  might  be  brought  to  the  attention  of 
the  court  that  rendered  the  judgment,  which  would  there- 
upon give  relief;  (5)  of  audita  querela,  to  have  the  benefit 
of  matter  in  discharge  arising  after  judgment,  or  exist- 
ing before  and  kept  from  the  attention  of  the  court  by 
fraud  of  the  other  party;  or,  (6)  by  bill  for  review  in 
chancery,  by  which  the  extraordinary  powers  of  the 
chancery  were  invoked  to  obtain  relief  from  an  unjust 
judgment  suffered  by  reason  of  excusable  mistake  of  fact, 
accident,  or  fraud. 

§  31.  Modem  practice  as  to  relief  after  the  term.  Such 
is  the  law  to  this  day,  except  that  in  modem  practice  the 
relief  obtained  in  all  these  numerous  old  actions  is  very 
generally  granted  on  a  simple  motion  in  the  court  that 
rendered  the  judgment ;  and  some  further  relaxations,  the 
limits  of  which  are  not  always  clearly  defined,  have  been 
introduced  by  statutes  and  custom  differing  in  each  state. 

Section  4.    Effect  of  Judgments. 

§  32.    In  general.    Judgments  have  effect  principally  in 

two  particulars:    (1)  in  estopping;  and,  (2)  in  creating 

liens  on  property.    The  effect  of  judgments  in  creating 

liens  is  considered  in  the  following  article  in  this  volume, 


JUDGMENTS  329 

upon  Attaclimeiit,  Garnisliment,  and  Execution,  Chapter 
V,  with  the  kindred  liens  created  by  those  proceedings. 
The  effect  of  judgments  in  creating  estoppels  we  shall 
consider  now. 

§  33.  Why  judgments  estop.  Res  judicata  (a  thing 
adjudicated)  is  the  name  usually  given  to  the  branch  of 
the  law  we  are  now  discussing.  The  rule  that  a  judgment 
shall  estop  is  one  of  necessity.  Any  other  rule  would 
render  all  trials  mere  mockery,  and  all  disputes  endless. 
As  soon  as  any  judgment  had  been  rendered,  a  new  action 
might  be  commenced  to  try  the  questions  again,  or  to 
determine  whether  the  first  decision  was  correct,  and  so 
on  ad  infinitum.  The  repose  of  society  and  the  security 
of  every  individual  require  that  what  has  been  definitely 
determined  by  a  competent  tribunal  shall  be  accepted 
as  indisputable.  Therefore,  res  judicata  may  render  that 
white  which  was  black,  and  that  straight  which  was 
crooked.  Being  a  rule  of  necessity,  it  must  be  very 
ancient ;  but  we  find  it  first  fully  and  formally  stated  in 
the  Duchess  of  Kingston's  Case  (17).  Concerning  the 
propositions  announced  in  the  opinion  in  that  case,  a  re- 
cent writer  on  the  subject  says :  * '  For  one  hundred  and 
nineteen  years  [since  1776]  they  have  stood  the  test,  and 
been  copied  with  approval  by  every  supreme  court  in  the 
English-speaking  world,  and  by  eveiy  author  who  has 
treated  upon  the  subject"  (18). 

The  following  are  the  propositions  referred  to  in  the 
above  comment:    *'What  has  been  said  at  the  bar  is  cer- 


(17)  2  Smith's  Leading  Cases,  424. 

(18)  Van  Fleet's  Former  Adjudications,  p.  4. 


330  JUDGMENTS 

tainly  true,  as  a  general  principle,  that  a  transaction  be- 
tween two  parties,  in  judicial  proceedings,  ought  not  to  be 
binding  upon  a  third ;  for  it  would  be  unjust  to  bind  any 
person  who  could  not  be  admitted  to  make  a  defense,  or 
to  examine  witnesses,  or  to  appeal  from  a  judgment  he 
might  think  erroneous.  .  .  .  From  the  variety  of 
cases  relative  to  judgments  being  given  in  evidence  in 
civil  suits,  these  two  deductions  seem  to  follow  as  gen- 
erally true :  first,  that  the  judgment  of  a  court  of  concur- 
rent jurisdiction,  directly  upon  the  point,  is  as  a  plea, 
a  bar,  or  as  evidence,  conclusive,  between  the  same  parties, 
upon  the  same  matter,  directly  in  question  in  another 
court ;  secondly,  that  the  judgment  of  a  court  of  exclusive 
jurisdiction,  directly  upon  the  point,  is,  in  like  manner, 
conclusive  upon  the  same  matter,  between  the  same 
parties,  coming  incidentally  in  question  in  another  court, 
for  a  different  purpose.  But  neither  the  judgment  of  a 
concurrent  or  exclusive  jurisdiction  is  evidence  of  any 
matter  which  came  collaterally  in  question,  though  within 
their  jurisdiction,  nor  of  any  matter  incidentally  cogniz- 
able, nor  of  any  matter  to  be  inferred  by  argument  from 
the  judgment.'* 

§  34.  Essentials  of  estoppel  by  judgment.  There  is  an 
estoppel  by  judgment  only:  (1)  (a)  as  to  the  cause  of 
action  and  (b)  the  issues  tried;  (2)  in  a  suit  between  the 
same  parties,  or  to  which  they  were  privy,  or  in  rem; 
and,  (3)  when  the  judgment  is  upon  the  merits,  final, 
valid,  and  subsisting.  There  is  no  estoppel  if  any  of  these 
three  requirements  be  wanting.  Our  consideration  of  this 
topic  will  therefore  consist  of  a  review  of  these  three 
essentials,  in  the  order  named. 


JUDGMENTS  331 

§35.  What  matters  are  res  judicata.  Two  distinct 
kinds  of  questions  are  res  judicata:  (1)  the  cause  of  ac- 
tion sued  on  and  the  defenses  to  it,  the  defendant's 
counterclaims  and  the  defenses  to  them;  and,  (2)  all  mat- 
ters directly  in  issue  and  necessarily  decided,  provided 
the  court  deciding  would  have  had  jurisdiction  to  decide 
them  in  the  connection  in  which  they  were  afterwards 
presented  as  res  judicata.  The  distinction  between  these 
is  thus  stated  by  Mr.  Justice  Field:  *' There  is  a  differ- 
ence between  the  effect  of  the  judgment  as  a  bar  or  es- 
toppel against  the  prosecution  of  a  second  action  upon 
the  same  claim  or  demand,  and  its  effect  as  an  estoppel 
in  another  action  between  the  same  parties  upon  a  dif- 
ferent claim,  or  cause  of  action.  In  the  former  case,  the 
judgment,  if  rendered  upon  the  merits,  constitutes  an 
absolute  bar  to  a  subsequent  action.  It  is  a  linality  as  to 
the  claim  or  demand  in  controversy,  concluding  parties 
and  those  in  privity  with  them,  not  only  as  to  every  mat- 
ter which  was  offered  and  received  to  sustain  or  defeat 
the  claim  or  demand,  but  as  to  any  other  admissible  mat- 
ter which  might  have  been  offered  for  that  purpose. 
.  .  .  But  where  the  second  action  between  the  same 
parties  is  upon  a  different  claim  or  demand,  the  judgment 
in  the  prior  action  operates  as  an  estoppel  only  as  to  those 
matters  in  issue  or  points  controverted,  upon  the  de- 
termination of  which  the  finding  or  verdict  was  ren- 
dered." He  then  proceeds  to  say  that  in  the  latter  class 
of  cases,  **the  inquiry  must  always  be  as  to  the  point 
actually  litigated  and  determined  in  the  original  action. 


332  JUDGMENTS 

not  what  might  have  been  thus  litigated  and  deter- 
mined" (19). 

We  shall  now  consider  these  two  classes  of  matters  in 
the  order  above  named. 

§  36.  Causes  of  action  and  defenses  which  are  barred. 
Whether  contested  or  not,  a  final  judgment  on  the  merits, 
by  a  court  having  jurisdiction :  (1)  extinguishes  the  whole 
cause  of  action  sued  on,  by  declaring  that  it  does  not 
exist  or  by  making  it  over  into  a  judgment ;  and,  likewise, 
(2)  extinguishes  all  counterclaims  set  up,  by  denying  or 
allowing  them;  and,  (3)  extinguishes  all  defenses  to  all 
claims  and  counterclaims,  by  declaring  that  they  do  not 
exist  or  by  making  them  into  a  judgment.  Therefore,  no 
demand  set  up  by  the  plaintiff  in  his  complaint,  or  by 
the  defendant  in  his  counterclaim,  and  prosecuted  to  judg- 
ment, and  no  defense  to  any  claim  or  counterclaim, 
whether  the  defense  was  presented  or  not,  can  be  taken 
into  account  in  any  other  action  between  the  same  parties 
while  that  judgment  stands.  If  the  demand  or  counter- 
claim was  denied,  it  cannot  be  considered  again,  because 
the  judgment  proves  that  it  is  unfounded.  If  it  was  al- 
lowed in  part  only,  it  cannot  be  considered  again,  because 
the  judgment  proves  the  remainder  unfounded.  As  to  the 
part  allowed,  or  the  whole  if  all  was  allowed,  that  cannot 
be  considered  again,  because  it  has  been  made  into  a  judg- 
ment in  his  favor,  or  allowed  as  a  payment  on  the  demand 
against  him.  He  asked  that  this  be  done.  If  a  farmer 
requests  a  miller  to  grind  his  wheat  and  accepts  the 
ground  product,  he  should  not  then  ask  for  the  return  of 


(19)     Cromwell  v.  County  of  Sac,  94  U.  S.  351. 


JUDGMENTS  333 

his  wheat  also,  and  it  would  do  him  no  good  if  he  did. 
The  situation  is  much  the  same  in  the  case  under  con- 
sideration. 

§  37.  Application  of  doctrine  of  merger.  The  doctrine 
of  merger  has  often  been  discussed  by  courts  and  text- 
writers  in  this  connection.  There  can  be  merger  only 
into  something  greater.  The  smaller  cannot  contain  the 
larger.  Applying  these  principles,  it  has  been  held  in 
England  that  a  debt  on  a  bond  was  not  extinguished  by 
judgment  being  recovered  thereon  in  a  court  not  of  record ; 
and  that  execution  might  issue  on  a  judgment  in  the 
king's  bench  after  judgment  recovered  thereon  in  the 
common  pleas  (20).  In  other  words,  it  was  held  that  the 
judgment  extinguishes  only  what  is  inferior  to  itself.  On 
the  same  theory,  a  few  American  courts  have  held  a  judg- 
ment not  to  be  extinguished  by  another  judgment  being 
recovered  thereon  (21).  But  the  majority  of  the  Ameri- 
can courts  hold  that  the  new  judgment  destroys  the  old, 
though  rendered  by  a  court  of  another  state  (22).  Yet, 
there  can  be  no  merger,  for  the  two  are  equal.  Some  have 
said  the  original  cause  is  extinguished,  because  allowing 
a  new  suit  would  encourage  useless  litigation,  vexatious 
to  the  defendant  and  without  benefit  to  the  plaintiff.  It 
is  generally  admitted  that  the  plaintiff  may  sue  on  his 
judgment  at  once  if  not  paid,  and  again  on  his  new  judg- 
ment, and  so  on  as  often  and  as  many  times  as  he  wishes 


(20)  Higgens's  Case,  6  Coke  Rep.  44b,  45a,  b ;  Preston  v.  Perton,  Cro. 
Eliz.  817. 

(21)  Mumford  v.  Stocker,  1  Cowen,  178. 

(22)  Price  v.  First  Nat.  Bank,  62  Kan.  735 ;  Gould  v.  Haydeu,  G3  Ind. 
443. 


334  JUDGMENTS 

(23).  Mr.  Freeman  suggests  that  to  allow  a  judgment 
to  remain  and  be  enforced  by  execution  after  another 
judgment  had  been  recovered  on  it,  might  enable  a  vast 
amount  of  property  to  be  seized,  sold,  and  absorbed  in 
costs,  on  one  small  demand,  to  the  ruin  of  the  defend- 
ant (24).  Yet,  where  it  is  held  that  the  creditor  may 
have  as  many  judgments  as  he  will,  it  is  agreed  that  he 
can  have  but  one  satisfaction.  That  the  claim  has  passed 
in  rem  judicatam  (become  a  thing  adjudicated)  furnishes 
a  sufficient  reason  in  every  case  where  the  cause  of  action 
or  defense  is  held  to  be  barred,  and  no  other  reason  will 
always  answer;  which  convinces  one  that  the  only  true 
foundation  in  every  case  is  res  judicata. 

§  38.  Only  cause  of  action  sued  on  and  defenses  to  it  are 
extinguished.  Therefore:  (1)  other  persons'  causes  of 
action  are  not  extinguished;  (2)  the  plaintiff's  other 
causes  of  action  are  not  extinguished ;  and  we  may  add  a 
further  qualification,  (3)  certain  incidents  of  the  plain- 
tiff's cause  of  action  remain.    Of  these  in  their  order. 

1.  The  rights  of  other  persons  are  not  extinguished 
by  the  judgment.  Their  rights  are  not  in  issue,  cannot 
be  tried ;  and  it  would  not  be  just  to  cut  them  off  without 
a  trial.  From  this  it  necessarily  follows  that  when  the  de- 
fendants are  principal  and  surety  they  remain  so  as  be- 
tween themselves  after  judgment  as  before  (25) ;  if  they 
were  tortfeasers,  and  therefore  not  entitled  to  contribu- 


(23)  In  a  recent  Texas  case  it  was  held  that  where  no  advantage  can 
accrue  to  the  creditor  by  the  new  suit  and  judgment  the  action  is  not 
maintainable.    Stevens  v.  Stone,  94  Texas,  415. 

(24)  Freeman  on  Judgments  §216. 

(25)  Fairchild  v.  Lynch,  99  N.  Y.  359. 


JUDGMENTS  335 

tion  from  each  other,  they  are  not  entitled  to  contribution 
afterwards  (26).  So,  where  a  person  sues  or  is  sued  in 
two  capacities,  a  recovery  by  or  against  him  in  one  ca- 
pacity will  not  bar  a  recovery  in  the  other  (27). 

2.  The  plaintiff's  other  causes  of  action  are  not  ex- 
tinguished. To  determine  whether  the  cause  of  action 
sued  on  and  the  one  on  which  judgment  was  formerly  re- 
covered are  the  same,  often  involves  the  perplexing  ques- 
tion of  separable  and  inseparable  causes  of  action.  We 
cannot  go  into  the  question  here,  otherwise  than  to  say 
that  only  one  judgment  can  be  recovered  for  the  one  cause 
of  action.  The  plaintiff  cannot  split  up  his  demand.  If 
he  sues  and  recovers  for  a  part  his  right  to  the  remainder 
is  gone.  But,  on  the  oth^  hand,  the  plaintiff  may  have 
several  causes  of  action  against  the  same  debtor,  and  suit 
and  recovery  upon  one  does  not  extinguish  the  right  to  sue 
and  recover  upon  the  others  (28).  Where  a  right  of 
action  is  joint  and  several  by  the  original  agreement,  or  is 
made  so  by  statute,  suit  and  recovery  of  judgment  against 
one  does  not  bar  the  future  action  against  the  others.  So, 
too,  when  a  mortgage  or  a  note  of  a  third  party  is  given 
as  security  for  a  debt,  judgment  against  the  third  party 
on  the  note,  or  a  decree  foreclosing  the  mortgage,  does  not 
extinguish  the  debt  (29).  Likewise,  taking  judgment 
against  a  garnishee  does  not  extinguish  the  principal 
judgment  (30). 


(26)  Percy  v.  Clary,  32  Md.  245. 

(27)  Loftis  V,  Marshall,  134  Cal.  394. 

(28)  Reilly  v,  Sicilian  Asph.  Pav.  Co.,  170  N.  Y.  40. 

(29)  Burnheimer  v.  Hart,  27  Iowa,  19. 

(30)  Brice  v.  Carr,  13  Iowa,  599. 


336  JUDGMENTS 

8.  Certain  incidents  of  the  plaintiff's  original  demand 
remain  incidents  of  the  judgment.  In  many  cases  courts 
will  look  behind  the  judgment  to  discover  on  what  it  is 
based,  to  the  end  that  it  may  be  correctly  interpreted. 
For  example,  if  the  debt  sued  on  was  the  purchase  price 
of  a  homestead,  the  homestead  would  not  be  exempt  from 
execution  on  the  judgment,  and  generally  the  taking  of 
judgment  on  a  debt  does  not  release  the  security  for  that 
debt  (31).  If  judgment  is  recovered  on  that  judgment, 
the  lien  and  right  of  priority  belonging  to  the  old  belongs 
to  the  new  judgment  (32). 

§  39.  What  matters  aside  from  claims,  counterclaims, 
and  defenses  are  concluded.  Having  determined  what 
causes  of  action,  counterclaims,  and  defenses  are  barred 
by  the  judgment,  we  now  ask:  Upon  what  matters  does 
the  judgment  conclude  the  parties  in  another  action  upon 
a  different  claim?  The  answer  to  this  question  is  thus 
given  by  Judge  Van  Fleet  in  his  recent  treatise  (33)  on 
this  subject:  "From  the  numerous  conflicting  decisions, 
I  have  deduced  what  seems  to  me  to  be  the  correct  prin- 
ciples, and  give  them  for  what  they  are  worth.     .     .     . 

"Among  other  things,  it  was  said  in  the  Duchess  of 
Kingston's  Case  that  the  judgment  of  a  court  of  con- 
current jurisdiction,  'directly  upon  the  point,'  was  con- 
clusive upon  the  same  matter  directly  in  question  in  an- 
other court ;  but  that  the  judgment  of  no  court  was  evi- 
dence of  any  matter  which  came  'collaterally  in  question.' 

(31)  White  V.  Simpson,  107  Ala.  386;  Ford  v.  Harrison,  09  Ark.  205. 

(32)  Springs  v.  Pharr,  131  N.  C.  191. 

(33)  Van  Fleet's  Former  Adjudications,  p.  27. 


JUDGMENTS  337 

The  principle  involved  in  these  two  rules  seems  quite 
plain,  nevertheless  the  cases  differ  in  their  application. 
Much  of  the  difficulty  arises,  as  it  seems  to  me,  from  con- 
fusing the  words,  'point,'  'matter,'  and  'question,'  with 
the  word  'issue.'  A  suit  may  involve  but  a  single  issue, 
and  yet  the  points,  matters,  and  questions  of  law  and  fact, 
which  tend  to  sustain  its  affirmative  or  negative,  may  be 
numerous.  It  is  the  affirmative  or  negative  of  this  issue 
which  the  respective  parties  bend  all  their  energies  to 
sustain,  and  which  is  the  matter  'directly'  under  con- 
sideration; while  the  evidence  introduced,  and  the  sub- 
sidiary questions  of  law  and  fact  which  they  seek  to  es- 
tablish in  order  to  determine  the  issue  in  controversy,  are 
matters  'collaterally  in  question,'  which  do  not  become 
things  adjudicated.  For  instance,  in  a  contest  over  a 
will,  in  wliich  the  sole  issue  is  soundness  or  unsoundness 
of  mind,  there  may  be  a  hundred  matters  of  controversy, 
and  the  jury  may  be  required  to  determine  that  many 
questions  by  answers  to  special  interrogatories ;  neverthe- 
less, all  these  questions  are  merely  collateral,  and  cannot 
be  used  as  evidence  between  the  same  parties  in  another 
cause."  The  pleadings,  court's  opinion,  and  even  parol 
proof  may  be  given  in  evidence  to  show  what  points  were 
decided  in  the  former  trial  (34). 

It  was  said  in  the  Duchess  of  Kingston's  Case  that 
*' neither  the  judgment  of  a  concurrent  nor  exclusive  juris- 
diction is  evidence  ...  of  any  matter  to  be  inferred 
by  argument  from  the  judgment. ' '  This  statement  means 
that  the  judgment  is  not  evidence  of  any  matter  in  issue, 


(34)     Cromwell  v.  Sac  County,  94  U.  S.  351. 


338  JUDGMENTS 

whicli  probably  was,  but  miglit  or  might  not  have  been, 
the  true  ground  of  recovery  (35). 

§  40.  Parties  bound  by  judgments:  Judgments  in  rem 
and  in  personam.  Having  considered  at  some  length  the 
matters  to  which  the  estoppel  relates,  we  come  now  to 
consider  what  persons  are  estopped.  In  this  connection, 
it  becomes  important  to  distinguish  between  judgments  in 
rem  and  judgments  in  personam,  and  between  the  cause 
of  action  and  the  issues  decided,  as  already  explained. 
Judgments  in  personam  are  those  establishing  or  denying 
claims  or  obligations  of  persons.  Judgments  in  rem  are 
those  fixing  the  status  of  things.  The  same  judgment 
may  be  in  rem  and  in  personam.  Thus,  when  a  person 
contests  the  probate  of  a  will  and  it  is  received  for  pro- 
bate, the  judgment  is  in  personam  and  in  rem  as  to  him, 
and  it  is  in  rem  as  to  all  who  did  not  become  parties  to 
the  proceedings.  He  is  bound  as  to  the  issues  decided, 
and  also  as  to  the  cause  of  action.  Those  who  did  not 
become  parties  are  bound  only  as  to  the  cause  of  action. 
As  to  the  matters  decided,  a  judgment  in  rem  concludes 
no  one  but  those  who  became  parties,  and  as  to  them  it  is 
a  judgment  in  personam  also.  But  as  to  the  cause  of 
action,  which  in  such  cases  is  always  to  fix  the  status  of 
the  thing,  it  binds  everyone  in  the  world  if  it  be  in  rem 
generally;  or  if  it  be  in  rem  as  to  certain  persons,  such 
as  attachments  without  personal  service  or  appearance, 
it  binds  them  and  their  privies.  With  this  much  to  dis- 
tinguish proceedings  in  rem,  let  us  see  who  are  bound 
by  judgments  in  personam. 


(35)     Kltson  V.  Farwell,  132  111.  327. 


JUDGMENTS  339 

§  41.    In  what  suits  judgments  bind  parties  and  privies* 

1.  A  judgment  neither  binds  nor  benefits  strangers. 
Strangers  are  not  bound,  because  they  have  had  no  day  in 
court.  A  judgment  never  binds  parties  in  their  actions 
with  strangers,  because  it  would  be  unjust  that  anyone 
should  bind  another  by  a  trial  in  which  he  himself  was 
not  exposed  to  the  peril  of  being  equally  bound  if  the 
judgment  had  been  the  other  way. 

2.  For  the  same  reason,  there  is  no  estoppel  between 
the  parties  themselves  unless  both  are  bound  by  the  judg- 
ment, as  the  defendant  would  not  be  in  cases  of  attach- 
ment without  service  or  appearance.  The  estoppel  must 
be  mutual. 

3.  Parties  to  an  action  who  were  not  adversaries  are 
not  bound  to  each  other  by  the  judgment  therein.  A  judg- 
ment in  favor  of  A,  against  B  and  C,  is  not  res  judicata 
between  B  and  C,  because  their  rights  were  not  in  issue 
and  could  not  be  tried. 

4.  A  party  is  not  estopped  or  benefited  by  an  earlier 
judgment  in  which  he  sued  the  other  party  or  was  sued 
by  him  in  a  different  capacity. 

5.  There  is  a  difference  of  opinion  as  to  whether  judg- 
ments operate  as  res  judicata  in  subsequent  actions  be- 
tween the  same  parties  on  one  side  and  some  of  the  parties 
on  the  other.  But  the  majority  of  the  courts  favor  apply- 
ing the  estoppel. 

6.  A  similar  difference  of  opinion  exists  where  new 
parties  are  added  on  either  side.  As  to  the  cause  of 
action,  the  party  claiming  it  would  seem  to  be  estopped, 
because  it  is  barred  by  or  changed  into  the  judgment,  and 


340  JUDGMENTS 

the  strangers  could  not  object.  But  as  to  the  issues  tried, 
the  new  party  is  not  bound,  and  why  should  the  opposite 
party  be  (36)? 

§  42.  Who  are  parties.  Judgments  and  decrees  are  con- 
clusive only  between  parties  and  privies  thereto.  Ac- 
cording to  Greenleaf,  ''those  are  held  to  be  parties  who 
have  a  right  to  control  the  proceedings,  to  make  defense, 
to  produce  and  cross-examine  witnesses,  and  to  appeal 
from  the  decision  if  appeal  lies"  (37).  This  statement 
may  be  agreed  to,  if  it  be  understood  that  the  persons 
mentioned  have  been  brought  into  court  by  due  service 
of  process,  have  voluntarily  entered  appearance,  or  are 
actually  present  and  participating  in  the  proceedings,  in 
person  or  by  attorney.  The  record  will  usually  show 
who  the  parties  were ;  but  a  party  suing,  sued,  prosecut- 
ing, or  defending,  by  a  wrong  name  or  in  the  name  of 
another,  is  as  much  estopped  by  the  judgment  as  if  he 
had  been  named  in  the  record ;  and  parol  evidence  is  com- 
petent to  show  his  connection  with  the  proceedings  (38). 
But  the  person  in  whose  name  the  action  was  brought  is 
not  bound  by  the  judgment,  if  he  had  not  the  rights  of 
control  above  mentioned. 

§  43.  Who  are  privies.  If  a  person  is  bound  by  a  judg- 
ment, as  a  privy  to  one  of  the  parties,  it  is  because  he 
has  succeeded  to  some  right,  title,  or  interest  of  that  party 
in  the  subject  matter  of  the  litigation,  and  not  because 


(36)  For  the  above  propositions,  see  Freeman  on  Judgments,  §§  154, 
156,  158-61;  Leggott  v.  Great  N.  Ry.  Co.,  1  Q.  B.  Div.  509. 

(37)  1  Greenleaf  on  Evidence,  §  535 ;  Ruff  v.  Ruff,  85  Pa.  St,  333. 

(38)  Black   on  Judgments  §§537-541;   Cromwell  v.  County  of  Sac, 
94  U.  S.  351. 


JUDGMENTS  311 

there  is  privity  of  blood,  law,  or  representation  between 
them,  although  privity  of  the  latter  sort  may  also  exist. 
It  must  also  be  remembered  that  privies  are  not,  as  such, 
estopped  as  to  the  issues  tried,  beyond  controversies  af- 
fecting their  estate  in  the  subject  of  the  action  or  ac- 
quired from  one  of  the  parties  after  judgment  in  the 
former  case.  In  order  to  create  this  relationship  two 
requisites  must  exist.  In  the  first  place,  the  person  who 
is  to  be  thus  connected  with  the  judgment  must  be  one 
who  claims  an  interest  in  the  subject  affected,  through  or 
under  one  of  the  parties.  In  the  second  place,  privies, 
in  such  sense  that  they  are  bound  by  the  judgment,  are 
those  who  acquired  their  interest  in  the  subject  matter 
after  the  commencement  of  the  action;  if  their  title  or 
interest  attached  before  that  time,  they  are  not  bound 
unless  made  parties.  He  who  takes  title  through  a  party 
while  a  suit  is  pending  concerning  the  property,  takes  it 
subject  to  the  judgment  that  may  thereafter  be  rendered 
in  that  suit  (39).  But  neither  a  party  nor  a  privy  is 
estopped  by  the  judgment  from  setting  up  a  title  acquired 
from  a  stranger  too  late  to  be  tried  in  the  action  (40). 

§  44.  Judgment  essential.  A  verdict  does  not  estop. 
There  must  be  judgment.  Action  may  be  maintained  and 
judgment  recovered,  notwithstanding  a  prior  verdict 
found  in  another  action  between  the  same  parties  on  the 
same  demand,  whether  that  verdict  sustained  or  denied 
the  claim,  and  the  issues  tried  are  still  open  to  dis- 


(39)  Freeman  on  Judgments  §  162. 

(40)  Freeman  on  Judgments  §  320. 


342  JUDGMENTS 

pute  (41).  In  England  it  is  held  that  the  creditor  who 
has  recovered  judgment  in  another  country  may  sue  on 
the  original  demand  or  on  the  judgment  at  his  option. 
But  in  Louisiana  the  original  demand  was  held  to  be  ex- 
tinguished by  the  judgment  in  a  foreign  country  (42) ; 
and  the  rule  is  always  applied  in  the  United  States  as 
to  judgments  rendered  in  one  of  the  states  (43).  Thus, 
when  a  debtor  had  some  property  in  New  Hampshire 
and  some  in  New  York,  but  not  enough  in  either  place 
to  satisfy  the  whole  claim,  it  was  held,  that,  by  suing  and 
taking  judgment  in  New  York  while  his  action  was  pend- 
ing in  New  Hampshire,  the  creditor  barred  the  further 
prosecution  of  his  original  action  in  New  Hampshire  (44). 
In  England  and  America,  it  is  now  settled  that  a  foreign 
judgment  sustaining  or  denying  the  claim  is  conclusive 
as  to  the  validity  and  amount  of  the  demand  (45) ;  and  it 
should,  therefore,  be  held  to  bar  a  new  recovery  on  the 
original  demand.  The  same  reasons  which  make  foreign 
judgments  conclusive  as  to  the  cause  of  action  make  them 
conclusive  as  to  the  issues  decided. 

§  45.  Effect  of  special  jurisdiction  of  court.  If  the 
court  had  not  jurisdiction  of  the  particular  case  before 
it,  its  judgment  is  of  no  effect  for  any  purpose,  as  we 
have  seen.  But  if  the  court  had  jurisdiction,  a  judgment 
of  a  justice  of  the  peace,  though  rendered  in  another 


(41)  Black  on  Judgments  §682;  Lehmann  v.  Farwell,  95  Wis.  185* 
Dougherty  v.  Lehigh  Coal  Co..  202  Pa.  St.  635. 

(42)  Jones  v.  Jamison.  15  La.  Ann.  35. 

(43)  Gray  v.  Richmond  Co..  167  N.  Y.  348. 

(44)  Child  V.  Eureka  Powder  Works,  45  N.  Hamp.  547. 

(45)  Hilton  v.  Guyot,  159  U.  S.  113. 


JUDGMENTS  343 

state  (46),  is  as  binding  concerning  the  cause  of  action 
as  the  judgment  of  a  court  of  last  resort  would  be,  and  it 
matters  not  that  it  is  erroneous.  What  has  just  been 
said  has  reference  to  the  cause  of  action.  The  rule  as  to 
the  effect  of  a  judgment  as  an  estoppel  concerning  the 
issues  decided  is  different.  In  this  respect  there  is  a  dis- 
tinction made,  depending  on  the  scope  of  the  jurisdiction 
of  the  court  rendering  the  judgment.  In  the  Duchess  of 
Kingston's  Case  (note  17,  above)  it  is  said  to  turn  on  the 
jurisdiction  being  exclusive  or  concurrent.  As  to  this 
Judge  Van  Fleet  says :  ''But  I  do  not  think  the  exclusive- 
ness  was  of  any  moment.  It  seems  to  me  that  it  was  the 
completeness  of  the  jurisdiction  which  gave  conclusive 
force  to  the  adjudication  in  other  courts.  In  other  words, 
if  the  jurisdiction  had  been  concurrent  in  several  courts, 
as  frequently  happens  in  America,  the  adjudication  would 
have  been  none  the  less  conclusive.  If  an  issue  is  directly 
made  in  any  court  which  has  complete  jurisdiction  to  de- 
termine it,  the  adjudication  is  conclusive  in  all  other  ju- 
dicial proceedings.  .  .  .  The  correct  principle  in- 
volved, in  my  opinion,  in  the  phrase  'court  of  concurrent 
jurisdiction,'  was  first  formulated  by  a  Britsh  court  sit- 
ting in  India,  as  follows:  'In  order  to  make  the  decision 
of  any  court  final  and  conclusive  in  another,  it  must  be  a 
decision  of  a  court  which  would  have  had  jurisdiction 
over  the  matter  in  the  subsequent  suit  in  which  the  first 
decision  is  given  in  evidence  as  conclusive.'  .  .  . 
Thus,  if  the  same  instrument  purports  to  convey  a  horse 
and  a  tract  of  land,  and  the  purchaser,  relying  upon  it 


(46)     Ault  V.  Zehering,  38  Ind.  429. 

Vol.  X— 2  4 


344  JUDGMENTS 

as  his  sole  evidence  of  title,  replevies  the  horse  before 
a  justice  of  the  peace,  that  officer  must  determine  its 
validity.  But  his  determination  cannot  be  used  as  evi- 
dence in  a  contest  over  the  real  estate  over  which  he  had 
no  jurisdiction"  (47). 

§  46.  Judgment  must  be  final,  on  merits,  and  subsisting. 
The  same  reasons  which  require  that  the  verdict  should 
not,  by  itself,  be  regarded  as  conclusive,  are  equally  ap- 
plicable to  interlocutory  judgments  and  decrees.  More- 
over, the  court  that  rendered  them  may  modify  them  at 
any  time,  and  they  should  not  be  more  conclusive  in  other 
courts  (48).  Such  orders  do  not  bar  another  recovery  for 
the  same  cause,  and  do  not  estop  as  to  the  issues  de- 
cided (49). 

'  The  estoppel  of  a  judgment  is  confined  to  those  matters 
actually  decided.  Therefore,  a  judgment  for  the  defend- 
ant, because  the  court  had  no  jurisdiction  to  hear  his  com- 
plaint or  grant  him  relief,  or  because  he  has  misconceived 
his  action,  or  has  not  brought  in  the  proper  parties,  or 
has  not  set  the  cause  forth  in  proper  form,  or  has  sued 
prematurely,  will  not  prevent  his  prosecuting  a  new  action 
in  a  competent  court,  on  a  sufficient  complaint,  against 
the  proper  parties,  for  the  same  cause,  after  it  has  ma- 
tured. But  as  to  the  matters  actually  decided  by  such 
final  judgment,  the  parties  are  as  much  bound  as  by  any 
other  judgment  (50). 


(47)     Van  Fleet's  Former  Adjudication,  29,  30,  31.    Compare:  Hibsh- 
man  v.  Dulleban,  4  Watts  (Pa.)  182. 

(4S)     Ducliess  of  Kingston's  Case,  2  Smith's  Leading  Cases,  424. 

(49)  Black  on  Judgments  §  509,  G95. 

(50)  Freeman  on  Judgments  §§260-209. 


JUDGMENTS  345 

If  the  judgment  is  set  aside  or  in  any  way  annulled, 
the  cause  of  action  on  which  it  was  rendered  conies  to  life 
again,  the  same  as  if  no  judgment  had  ever  been  ren- 
dered (51).  But  no  such  effect  is  produced  by  merely 
staying  the  enforcement  of  it,  or  taking  an  appeal  from 
it,  or  moving  for  a  new  trial  (52).  In  most  states  the 
parties  are  held  to  be  estopped  as  to  the  issues  decided, 
though  an  appeal  be  pending. 

§  47.  Judgment  must  be  in  personam.  A  judgment  by 
which  the  defendant  is  not  bound  does  not  merge  the  cause 
of  action.  For  example,  if  judgment  be  recovered  in  at- 
tachment without  personal  service,  though  the  attached 
property  is  bound  by  the  judgment,  the  defendant  is  not ; 
and,  for  any  balance  remaining  unpaid  by  the  proceeds  of 
the  attached  property,  the  creditor  may  maintain  an  action 
on  the  original  demand  (53).  Likewise,  judgments  ren- 
dered against  all  the  debtors  when  only  part  of  them  are 
served,  which  is  permitted  by  statute  in  several  states, 
does  not  extinguish  the  demands  sued  on,  for  those  not 
served  are  not  bound  by  the  judgment ;  and  afterward  the 
creditor  may  sue  the  others  or  all  on  the  original  cause 
of  action  (54) .  Yet,  if  only  a  part  are  sued  when  all  might 
have  been,  the  judgment  against  them  extinguishes  the 
cause  of  action,  and  the  plaintiff  cannot  hold  the  others 
afterward  (55).    As  to  the  issues  tried,  we  have  already 


(51)  Goodrich  v.  Bodurtha,  6  Gray,  323;  Fries  v.  Pa.  Ry.  Co.,  98  Pa. 
St.  142. 

(52)  Cloud  V.  Wiley,  29  Ark.  80;  Young  v.  Brehe,  19  Xev.  379. 

(53)  National  Bank  v.  Peabody.  55  Vt.  492. 

(54)  Mason  v.  Eldred,  6  Wall.  231. 

(55)  Freeman  on  Judgments  §§  231,  232. 


346  JUDGMENTS 

seen  (§§40-41)  that  there  is  no  estoppel  in  any  action 
merely  in  rem,  because  the  estoppel  must  be  mutual,  and, 
as  those  who  do  not  become  parties  are  not  estopped,  they 
cannot  set  up  the  estoppel  against  those  who  have  become 

parties. 

§  48.  Satisfaction  of  judgment  and  subsequent  rights. 
These  topics  are  treated  in  the  next  article,  upon  Attach- 
ment, Garnishment,  and  Execution,  Chapter  VI,  in  this 
volume. 


ATTACHMENTS,  GARNISHMENTS  AND 
EXECUTIONS 


BT 


JOHN  ROMAIN  ROOD, 

Lli.  B.    (University  of  Michigan) 

Professor  of  Law,  University  of  Michigan. 


CHAPTER  I. 
NATURE  OF  THE  PROCESSES. 

§  1.  What  judgments  need  no  execution.  The  judg- 
ment has  been  said  to  be  the  end  of  the  law  in  regard 
to  the  controversy;  and  such  it  is,  whenever  it  declares 
the  existing  status  to  be  the  just  one.  So,  too,  where  the 
judgment  or  decree  is  self-executing,  which  is  whenever 
the  thing  awarded  is  not  capable  of  manual  delivery.  For 
example,  a  process  to  take  an  office  from  one  man  and 
give  it  to  another  would  be  a  troublesome  thing  to  exe- 
cute. The  sheriff  could  hardly  convince  the  one  party 
that  he  had  received  or  the  other  that  he  had  been  dis- 
robed of  it.    But  in  most  eases  the  judgment  woulc 


348     ATTACHMENT,  GAENISHMENT,  EXECUTION 

amount  to  nothing  if  the  law  did  not  provide  means  of 
putting  it  into  effect. 

§  2.  Enforcement  by  coercion.  Satisfaction  of  judg- 
ments and  decrees  may  be  enforced:  (1)  by  coercing  him 
against  whom  the  judgment  or  decree  is  pronounced  till 
he  satisfies  it;  (2)  by  an  officer  putting  the  judgment  into 
effect  under  the  direction  of  the  court.  The  coercion  may 
consist  of  imprisoning  the  defendant,  or  seizing  and  hold- 
ing his  property,  or  both.  At  one  time,  this  means  of  en- 
forcement was  available  on  every  judgment  at  law,  and 
was  the  only  means  of  enforcing  decrees  of  the  court  of 
chancery.  Now,  we  have  statutes  rendering  decrees  en- 
forceable in  any  way  that  a  similar  judgment  might  be 
enforced;  and  corcion  is  not  now  available  to  enforce 
satisfaction  of  any  judgment  for  the  paj^ment  of  money 
merely,  except  in  certain  cases  specified  in  the  statute, 
and  usually  is  confined  to  judgments  for  torts,  frauds,  or 
misconduct  in  office.  But  this  is  the  usual  method  of  en- 
forcing the  final  orders  at  law  in  the  extraordinary  ac- 
tions—mandamus, procedendo,  prohibition,  habeas  cor- 
pus, etc.  (See  Extraordinary  Eemedies  in  Vol.  IX).  At- 
tachment is  the  generic  term  api^lied  to  all  writs  designed 
to  coerce  obedience  or  punish  for  contempt;  and  this 
was  the  only  sense  in  which  the  word  was  used  by  the 
courts,  until  the  modern  practice  was  introduced  of  seiz- 
ing property  belonging  to  the  defendant  and  holding  it 
to  furnish  a  fund  for  the  satisfaction  of  a  judgment  yet 
to  be  rendered. 

§  3.    Execution  by  officer  under  process  of  court.    All 

the  judgments  in  the  ordinary  actions  at  law  which  need 


ATTACHMEXT,  GAEXISHMEXT,  EXECUTION     349 

putting  into  effect  may  be  executed  by  the  court's  officer, 
without  attempting  to  coerce  the  defendant  to  satisfy 
them.  The  judgments  in  these  actions  which  may  require 
execution  are:  (1)  for  a  sum  in  money,  as  in  assumpclo; 
(2)  for  a  specific  chattel,  as  in  replevin;  (3)  for  a  specific 
parcel  of  land,  as  in  ejectment;  (4)  for  any  combination 
of  these,  as  when  in  replevin  judgment  for  defendant  is 
given  for  costs  in  money,  for  the  return  of  the  specific 
chattel,  and,  if  the  chattel  cannot  be  had,  then  for  a  speci- 
fied equivalent  in  money.  The  execution  which  may  issue 
upon  any  judgment  will  depend  upon  the  class  to  which 
the  judgment  belongs,  for  the  execution  must  correspond 
to  the  judgment  to  be  enforced. 

§  4.  Execution  is  the  act  of  putting  something  into 
effect.  Every  jDrocess  issued  with  a  view  of  putting  a 
judgment  into  effect  may  properly  be  termed  an  execu- 
tion. Even  attachment,  garnishment,  replevin,  and  other 
writs  designed  to  provide  in  advance  for  the  satisfaction 
of  the  judgment,  are,  in  one  sense,  only  anticipatory  exe- 
cutions. All  of  these  are  sufficiently  embraced  in  the  defi- 
nition of  an  execution  as  the  command  of  the  law  made  by 
the  court  in  writing,  solemnly  directing  the  judgment 
to  be  put  into  effect,  and  usually  specifying  the  method 
of  proceeding  with  greater  or  less  certainty.  The  follow- 
ing are  some  of  the  principal  writs  partaking  of  the  na- 
ture of  an  execution. 

§  5.  Replevin,  a  common  law  action,  demands  mention 
here,  because  its  original  process  is  in  effect  an  execution, 
commanding  the  officer  to  make  immediate  restitution  to 
the  plaintiff  and  at  the  same  time  to  summon  the  defend- 


350     ATTACHMENT,  GARNISHMENT,  EXECUTION 

ant  to  answer  the  plaintiff  in  court.  Here  we  have  the 
relief  granted  first,  and  the  right  to  it  tried  afterward. 
This  was  the  only  common  law  action  in  which  relief  was 
given  before  judgment. 

§  6.  Attachment,  in  its  most  comprehensive  sense  as  a 
legal  term,  means:  (1)  the  act  of  taking  the  body  or  ef- 
fects of  any  person  into  custody  and  so  holding  the  same 
to  abide  the  further  orders  of  the  court;  or,  (2)  any  pro- 
cess commanding  such  acts  to  be  done.  Any  process 
commanding  the  taking  of  the  body  is  called  a  capias. 
The  most  common  attachment  of  this  kind  is  the  capias 
ad  respondendum,  commanding  the  officer  to  arrest  and 
detain  the  defendant  till  he  enters  appearance  in  the  ac- 
tion with  bond  to  satisfy  whatever  judgment  may  be 
recovered  therein.  At  the  present  time  the  most  common 
attachment  is  the  one  commanding  the  officer  to  seize 
property  of  the  defendant  to  a  specified  amount  and 
hold  it,  the  purpose  being  to  order  it  sold  when  judg- 
ment is  rendered,  and  to  apply  the  proceeds  in  satisfac- 
tion of  the  judgment. 

§  7.  Garnishment  consists  of  notifying  someone  to  re- 
tain something  he  has  belonging  to  the  defendant,  to 
make  disclosure  before  the  court  concerning  it,  and  to 
dispose  of  it  as  the  court  shall  direct.  A  person  so  sum- 
moned is  called  a  garnishee.  The  proceeding  has  been 
likened  to  a  subpoena  to  a  witness,  in  that  it  is  a  summons 
to  give  testimony  in  an  action  between  others  upon  being 
paid  the  mileage  and  fees  of  a  witness.  In  another  as- 
pect it  has  been  seen  to  resemble  an  injunction  against 
disposing  of  property,  the  disobedience  of  which  is  a 


ATTACHMENT,  GARNISHMENT,  EXECUTION     351 

contempt  of  court  for  which  the  garnishee  may  be  pun- 
ished (1).  Again,  it  may  be  compared  to  an  order  ap- 
pointing a  receiver ;  for,  when  served,  the  property  in  his 
possession  is  in  the  custody  of  the  law,  and  the  garnishee 
is  merely  the  hand  of  the  court,  even  as  a  sheriff  holding 
property  under  an  attachment  or  an  execution  (2).  The 
garnishing  creditor  discerns  in  it  only  an  attachment  or 
execution  ancillary  to  his  action  or  to  enforce  his  judg- 
ment. He  sees  in  the  garnishee  an  officer  of  the  court 
holding  the  property  under  his  writ,  for  which  he  is 
seeking  to  compel  the  garnishee  to  account.  But  the 
garnishee  sees  in  it  an  action  against  him  by  his  credi- 
tor for  the  benefit  of  his  creditor's  creditor— an  action 
commenced  by  filing  a  sworn  complaint  (the  garnish- 
ment affidavit),  issuing  and  serving  a  summons  to  appear 
and  defend,  liable  to  be  followed  by  a  judgment  for  de- 
fault if  he  does  not  plead  within  the  prescribed  time,  like- 
ly to  result  in  issue  being  joined  and  trial  demanded  if 
he  appears  and  denies  the  complaint,  which  action,  de- 
spite his  stoutest  defense,  may  lead  to  a  judgment  against 
him,  enforceable  by  seizing  and  selling  any  of  his  prop- 
erty not  exempt  from  execution,  as  any  other  judgment 
would  be.  These  partial  resemblances  remind  us  of  Saxe  's 
Hindoo  tale  of  the  four  blind  men  and  the  elephant,  and 
show  how  unlike  anything  but  itself  garnishment  is.  Un- 
der some  statutes,  garnishments  issue  ancillary  to  an  exe- 
cution; under  others,  ancillary  to  an  attachment;  under 
others,  independently,  as  a  form  of  attachment  if  before 


(1)  Lilienthal  v.  Wallach,  37  Fed.  Rep.  241. 

(2)  Stiles  V.  Davis,  1  Black,  101. 


352     ATTACHMENT,  GARNISHMENT,  EXECUTION 

judgment,  as  a  form  of  execution  if  after  judgment.  The 
statutes  of  eacli  state  show  in  which  of  these  forms  they 
authorize  the  proceeding. 

§  8.  Fieri  facias  (fi.  fa.)  is  an  execution  commanding 
the  sheriff,  or  other  officer  addressed,  to  seize  and  sell 
enough  of  the  defendant's  property  to  satisfy  a  judgment 
therein  specified  with  the  amount,  and  to  bring  the  pro- 
ceeds into  court.  This  is  one  of  the  oldest,  and  to  this 
day  one  of  the  most  common  of  all  writs  of  execution. 
At  the  common  law,  only  goods  and  chattels  could  be 
taken  and  sold  under  this  writ  (3) ;  but  in  this  country 
since  1732  (4),  the  fee  or  any  other  legal  estate  in  lands 
may  be  seized  and  sold  under  a  fieri  facias  against  the 
owner.  In  some  states,  the  land  can  be  sold  only  in  case 
there  is  a  bid  for  it  at  the  sale  equal  to  a  certain  per  cent 
of  the  value  fixed  by  the  appraisers  at  the  time  of  the 
levy,  and  in  others  it  can  be  levied  on  only  in  case  sufficient 
chattels  liable  to  execution  cannot  be  found. 

§  9.  Capias  ad  satisfaciendum  (ca.  sa.)  is  an  execution 
commanding  the  officer  to  arrest  and  imprison  the  de- 
fendant till  the  judgment  against  him  is  satisfied. 

§  10.  Levari  facias  was  an  execution  allowed  by  the 
common  law,  to  be  issued  by  a  superior  or  an  inferior 
court,  commanding  the  sheriff  to  seize  the  defendant's 
property  and  hold  it  till  the  judgment  was  satisfied.  Un- 
der this  writ  the  sheriff  could  seize  all  the  defendant's 
goods,  and  take  the  rents  and  profits  of  his  lands ;  but  he 


(3)  Harbert's  Case,  3  Coke  lib.  Blackstone  says  a  term  for  years 
could  be  sold  as  a  chattel  'ander  a  fi.  fa.  at  the  common  law.  3  Bl.  Com. 
417. 

(4)  Statute  5  Geo.  II,  Cap.  7,  §  4. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     353 

could  not  sell  or  apply  the  property  to  a  satisfaction  of 
the  judgment,  and  the  possession  of  the  land  itself  could 
not  be  taken.    This  writ  is  very  little  used  in  America  (5). 

§  11.  Extendi  facias  was  an  execution  allowed  upon 
recognizances  in  certain  cases.  Under  this  writ  the  body, 
goods,  and  all  the  lands  of  the  debtor  could  be  taken  (6). 

§  12.  Elegit  was  an  execution  taking  its  name  and 
origin  from  the  statute  of  Westminister  2d,  c.  18, 13  Edw. 
I  (1285),  which  provides  that  when  a  debt  is  recovered 
or  acknowledged  in  the  king's  court,  or  damages 
awarded,  the  creditor  may  elect  to  have  a  fieri  facias 
or  a  writ  commanding  the  sheriif  to  deliver  to  him  all  the 
chattels  of  the  debtor  and  half  of  his  land.  Under  this 
writ  the  chattels  were  appraised  and  delivered  to  the 
creditor  as  a  payment  on  the  debt,  and  the  land  was 
appraised  and  half  of  it  delivered  for  such  a  term  as 
would  be  necessary  to  get  the  balance  of  the  judgment 
from  the  rent  at  the  appraised  value.  The  creditor  so 
in  possession  was  called  the  tenant  by  elegit.  Though 
no  land  could  be  found,  the  chattels  could  not  be  sold  un- 
der this  writ  but  must  be  appraised  and  delivered  in  pay- 
ment. This  writ  is  still  in  use  in  some  of  the  eastern 
states. 

§  13.  Habere  facias  seisinam,  or  writ  of  seisin  of  a  free- 
hold, and  habere  facias  possessionem,  or  writ  of  posses- 
sion of  a  term,  were  executions  by  which  the  sheriff  of 
the  county  where  the  land  lay  was  commanded  to  put  the 


(r.)     3  Bl.  Com.  417 ;  Freeman  on  Executions  §  6. 
(G)     3  Bl.  Com.  420. 


354     ATTACHMENT,  GARNISHMENT,  EXECUTION 

plaintiff'  into  actual  seisin  or  possession  of  the  land 
awarded  by  the  judgment. 

§  14.  Retomo  habendo  was  an  execution  on  a  judgment 
in  favor  of  the  defendant  in  replevin,  and  by  it  the  sheriff 
was  commanded  to  return  the  replevied  chattels. 

It  is  scarcely  profitable  to  review  the  old  writs  further, 
since  the  general  name  execution  covers  all,  and  a  writ 
appropriate  to  the  judgment  to  be  enforced  will  be  issued 
in  every  case. 


y 


ATTACHMENT,  GARNISHMENT,  EXECUTION     35a 


CHAPTER  II. 
ISSUANCE  OF  PROCESS. 

§  15.  Plan  of  treatment.  Having  reviewed  briefly  the 
nature  of  the  processes  by  which  judgments  are  enforced, 
we  come  now  to  consider  the  questions  which  arise  in 
issuing  the  processes ;  and  we  shall  take  them  up  in  the 
order  in  which  they  would  arise  in  the  prosecution  of  the 
suit ;  but  the  arrangement  of  the  questions  must  be  some- 
what arbitrary,  because  issuing  the  process  is  but  one 
transaction,  and  such  questions  as  are  presented  arise 
substantially  at  the  same  time.  Attachments,  garnish- 
ments and  the  numerous  forms  of  execution  may  conven- 
iently be  treated  together,  although  there  are  some  mat- 
ters peculiar  to  each,  which  will  have  to  be  specified 
from  time  to  time  as  we  proceed.  But  no  one  can  fail 
soon  to  discover  that  most  of  the  rules  stated  apply  to  all 
processes  alike,  and  that  to  restate  them  as  to  each  would 
be  worse  than  useless  repetition,  for  in  that  way  the  true 
scope  of  the  rules  would  not  be  shown. 

The  principal  questioms  which  can  arise  in  issuing 
processes  to  enforce  judgment  are  the  following:  (1) 
when  process  is  issued;  (2)  on  what  demands  the  proc- 
esses may  be  issued;  (3)  at  what  stage  of  the  case  the 
processes  may  be  issued ;  (4)  the  effect  of  the  use  of  one 
process  on  the  right  to  use  another;  (5)  who  may  demand 


356     ATTACHMENT,  GARNISHMENT,  EXECUTION 

and  control  the  issuance  of  the  processes;  (6)  against 
whom  the  processes  may  be  issued;  (7)  what  courts  may 
issue  the  processes;  (8)  the  form  and  essentials  of  the 
affidavits,  writs,  and  other  papers.  Each  of  these  ques- 
tions will  be  taken  up  in  the  order  named. 

§  16.  When  process  is  issued.  It  is  issuing  the  process 
that  gives  it  life  and  effect.  Writing,  signing,  and  seal- 
ing it  are  only  preliminary  acts.  It  is  so  issued  as  to  give 
it  effect  as  an  issued  process  only  when  it  has  been  put 
into  the  custody  of  the  officer  who  is  to  execute  it  (1). 
Indeed,  it  is  not  then  issued,  if  it  is  accompanied  by  ord- 
ers not  to  execute  till  some  later  time  (2). 

Section  1.    Demands  on  Which  Process  May  Issue. 

§  17.  Executions.  In  England  executions  might  issue 
on  recognizances  in  certain  cases;  and  in  America  we 
often  find  statutes  providing,  that,  on  certain  bonds  filed 
in  judicial  proceedings,  executions  may  issue  at  once  up- 
on  breach  of  the  condition  of  the  bond.  But  the  general 
rule  is  that  execution  can  be  issued  only  on  a  final,  sub- 
sisting judgment  (3).  But,  on  the  other  hand,  execution 
may  be  issued  on  any  final,  subsisting  judgment,  as  a  mat- 
ter of  course,  though  not  expressly  awarded  by  the  judg- 
ment, or  even  though  some  other  means  of  getting  satis- 
faction be  specified  (4). 

§  18.  Attachments  and  garnishments:  Limitations. 
Attachments  and  garnishments,  because  unknown  to  the 
common  law,  may  be  issued  only  in  cases  falling  within 


(1)  Gowan  v.  Fountain,  50  Minn.  264. 

(2)  Smallconib  v.  Cross,  1  L.  Raym.  251. 

(3)  Locke  V.  Hubbard,  9  S.  Dak.  364. 

(4)  Roberts  v.  Counellee,  71  Tex.  11. 


ATTACHMENT,  GAENISHMEXT,  EXECUTION     357 

the  terms  of  the  statutes  authorizing  these  proceedings. 
From  this  fact  arise  three  important  limitations  upon  the 
use  of  these  processes:  (1)  as  to  the  form  of  action  in 
which  they  may  be  issued;  (2)  as  to  the  character  of  the 
obligation  to  enforce  which  they  may  be  issued;  (3)  as 
to  the  grounds  or  exigencies  which  most  statutes  require 
to  exist  before  these  processes,  more  particularly  at- 
tachment, can  be  issued.    Of  these  in  the  order  named. 

§  19.  Form  of  action.  Wherever  the  code  provides  for 
but  one  form  of  action,  and  abolishes  the  old  forms,  this 
consideration  is  entirely  eliminated.  This  is  true  in  a 
majority  of  our  states  today.  In  the  states  where  there 
are  several  forms  of  actions,  it  is  important  to  observe 
that  attachment  and  garnishment  are  available  only  in 
such  as  the  statutes  permit. 

§  20.  Character  of  obligation.  The  most  general  lim- 
itation observed  in  the  statutes  is  that  they  do  not  extend 
the  use  of  these  processes  to  actions  brought  to  recover 
specific  property.  Such  proceedings  might  be  useful  in 
such  actions,  when  judgment  is  allowed  for  the  value  in 
case  the  property  itself  cannot  be  found,  and  to  secure 
the  costs  in  other  cases,  but  otherwise  they  are  not  adapt- 
ed to  the  purpose  of  such  actions.  Next  to  this,  the  most 
general  limitation  is  that  the  statutes  do  not  make  the 
processes  available  in  actions  to  recover  damages  aris- 
ing from  torts;  but  in  a  few  states  they  are  allowed  in 
such  actions  generally,  or  for  certain  specified  torts.  The 
statutes  in  most  states  provide  for  attachments  in  cer- 
tain cases  to  secure  debts  not  yet  due.  These  provisions 
extend  only  to  absolute  present  debts  payable  at  a  future 


358     ATTACHMENT,  GARNISHMENT,  EXECUTION 

day.  From  what  has  been  said  it  will  be  seen  that  the 
statutes  generally  extend  the  use  of  attachment  and  gar- 
nishment only  to  actions  on  contracts,  judgments,  and 
decrees.  By  interpretation,  most  courts  have  further 
limited  the  scope  of  the  use  of  attachment,  as  distin- 
guished from  garnishment,  by  holding  that  the  debt  sued 
for  must  be:  (1)  liquidated  or  capable  of  being  liqui- 
dated by  some  standard  known  to  the  law  or  specified  in 
the  contract  (5) ;  and,  (2)  approximately  ascertained 
when  the  action  is  commenced  (6).  But  a  few  courts 
hold  that  uncertainty  in  the  amount  of  the  demand  is  no 
objection  to  allowing  the  use  of  attachment  (7). 

§  21.  Grounds  or  exigencies  of  issue.  Some  ground  be- 
yond the  fact  of  an  unpaid  demand  must  exist  to  authorize 
an  attachment  under  most  statutes ;  but  the  statutes  dif- 
fer from  each  other  considerably  in  enumerating  what 
shall  be  sufficient  grounds.  Yet,  all  the  grounds  usually 
specified  indicate,  in  one  way  or  another,  that  the  plain- 
tiff would  not  be  very  likely  to  get  satisfaction  by  prose- 
cuting an  ordinary  action;  (1)  because  the  defendant  is 
removing  from  the  state,  is  now  a  non-resident,  or  is  a 
foreign  corporation,  for  which  reason  he  could  seldom  or 
never  be  found  within  reach  of  a  summons,  and,  if  served 
would  not  be  likely  to  have  property  permanently  within 
reach  of  execution  sufficient  to  satisfy  the  judgment;  (2) 
because  his  character  is  such  that  it  is  reasonable  to  sup- 
pose he  would  defy  execution  by  putting  all  of  his  prop- 
erty beyond  reach  before  judgment  could  be  recovered; 


(5)  Wilson  V.  I.onis  Cook  Mfg.  Co.,  88  N.  Car.  5. 

(6)  Ilawos  V.  Clements,  64  Wis.  152. 

(7)  See  Wilson  v.  Louis  Cook  Mfg.  Co.,  88  N.  Car.  5. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     359 

wliich  dishonest  character  is  shown:  (a)  by  his  having 
fraudulently  incurred  the  obligation  sued  on;  (b)  by  his 
having  absconded  or  concealed  himself  to  avoid  the  serv- 
ice of  process  upon  him;  or,  (c)  by  his  having  assigned, 
concealed,  or  carried  away  his  property,  or  a  part  of  it, 
to  get  it  beyond  the  reach  of  his  creditors,  or  having 
threatened,  prepared,  or  attempted  to  do  so. 

The  rules  to  be  deduced  from  the  decisions  upon  these 
statutory  provisions  fall  naturally  into  two  groups:  (1) 
those  which  show  what  constitutes  removing,  non-resi- 
dence, fraudulently  incurring  the  obligation,  absconding, 
concealing,  disposing  of  property  to  defraud,  etc.;  (2) 
those  which  apply  alike  to  all  the  grounds  for  attach- 
ments. The  matters  coming  within  the  first  class  are  too 
numerous,  minute,  and  local  to  be  considered  in  so  ele- 
mentary a  treatise  as  this  (8). 

§  22.  Rules  applicable  to  all  grounds  for  attachment. 
The  principal  rules  applicable  to  all  the  grounds  alike 
may  be  roughly  formulated  as  follows : 

1.  An  attachment  obtained  on  one  ground  cannot  be 
sustained  on  another,  though  the  other  would  have  been 
an  equally  good  ground  for  issuing  it  (9). 

2.  When  an  attachment  is  obtained  on  several  grounds 
it  is  sustained  by  the  existence  of  any  of  those  grounds. 

3.  When  an  attachment  is  obtained  on  several  grounds, 
and  one  of  those  grounds  exists  only  as  to  part  of  the 
demands  sued  on,  and  the  other  grounds  alleged  exist 


(8)  For  these  decisions  see:   Attachment,  §§54-121,  Vol.  5,  Century 
Digest,  251-32G;  Attachment,  3  Am.  &  Eng.  Ency.  L.  (2d  ed.)  195-206. 

(9)  Botsford  V.  Simmons,  32  Mich.  357. 

Vol.  X—P5 


360     ATTACHMENT,  GARNISHMENT,  EXECUTION 

only  as  to  the  remainder,  the  attachment  will  be  sustained 
as  to  all. 

4.  When  the  alleged  grounds  for  attachment  exist 
only  as  to  a  part  of  the  demand  sued  on,  the  whole  attach- 
ment will  usually  be  dismissed;  but  this  would  not  be 
done  if  the  improper  item  was  included  by  mistake,  nor 
because  more  was  claimed  than  proved  to  be  due,  provid- 
ed there  was  no  fraud  intended  (10). 

5.  When  there  are  several  defendants,  an  attachment 
of  the  property  of  all  cannot  be  sustained  without  an  al- 
leged ground  for  attachment  existing  as  to  all;  but  it 
seems  unnecessary  that  the  same  ground  should  exist 
as  to  all.  For  example,  the  attachment  might  be  sus- 
tained as  to  one  on  the  ground  that  he  was  a  non-resident, 
as  to  the  others  on  the  ground  that  they  had  absconded 

(11). 

6.  The  fact  that  a  ground  for  attachment  exists  as  to 
one,  and  not  as  to  the  others,  will  not  enable  the  creditor 
to  sue  him  alone  unless  the  obligation  is  joint  and  several. 
But,  according  to  the  decisions  in  several  courts,  the 
property  of  that  one  may  be  attached  in  a  suit  against 
all  (11). 

7.  Whatever  be  the  ground  for  the  attachment,  it 
must  be  substantially  made  out.  While  the  courts  are 
inclined  at  the  present  time  to  construe  the  attachment 
statutes  liberally  to  advance  the  remedy,  they  will  not 
stretch  the  words  of  the  statute  to  include  cases  which 
the  legislature  did  not  intend  to  include  (12). 


(10)  Meyer  v.  Evans,  27  Neb.  367. 

(11)  Wiley  V.  Sledge,  8  Ga.  532. 

(12)  Jackson  v.  Burke,  51  Tenn.  (4  Heisk.)  610. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     361 

Section  2.    At  What  Stage  of  Case  Process  May  Be 

Issued. 

§  23.  Garnishments.  Garnishments  need  not  be  sepa- 
rately considered;  for  where  they  are  issued  as  attach- 
ments or  ancillary  to  attachments  they  may  be  issued  as 
early  and  as  late  as  other  attachments,  and  when  they 
are  issued  as  executions  or  ancillary  to  executions  they 
may  be  issued  as  early  and  as  late  as  other  executions. 

§  24.  Attachments.  Attachments  are  usually  allowed 
by  the  statutes  to  be  issued  at  the  commencement  of  the 
action,  or  at  any  time  before  judgment.  For  this  pur- 
pose the  action  is  commenced  as  soon  as  the  declaration 
or  complaint  is  filed  and  before  the  summons  has  been 
served  or  issued  (13).  After  judgment  there  is  no  occa- 
sion for  issuing  an  attachment,  because  every  object  it 
could  serve  would  be  as  well  served  by  issuing  and  levy- 
ing an  execution ;  but,  if  an  attachment  should  be  issued 
after  judgment,  it  would  be  sustained  as  a  special  exe- 
cution, provided  it  contained  the  essentials  of  an  execu- 
tion (14).  In  the  absence  of  statute  providing  for  re- 
viving attachments  and  garnishments  upon  death  of  the 
defendant,  they  are  abated  by  his  death  before  judg- 
ment, but  not  by  his  death  after  judgment  (15). 

§  25.  Executions:  Before  recording  or  while  stayed. 
Executions  issued  before  judgment  is  rendered  are  void, 
not  voidable;  and  judgment  subsequently  rendered  will 
not  make  them  valid.    Some  statutes  say  that  as  soon  as 


(13)  Hargan  v.  Burch,  8  Iowa,  309. 

(14)  Pracht  v.  Pister,  30  Kan.  568. 

(15)  Drake  on  Attachjo/mt,  i§  422 ;  Rood  op  Garnishment,  §  381. 


362     ATTACHMENT,  GARNISHMENT,  EXECUTION 

the  judgment  is  recorded,  execution  may  issue ;  and  sev- 
eral courts  have  held  that  executions  issued  under  such 
statutes  before  the  record  is  made  are  absolutely  void 
(16),  unless  the  court  orders  the  entry  made  nunc  pro 
tunc;  but,  according  to  other  decisions,  they  are  only 
voidable,  and  generally  the  plaintiff  is  entitled  to  execu- 
tion as  soon  as  he  is  entitled  to  payment,  which  is  the 
moment  the  judgment  is  rendered.  Reasoning  by  anal- 
ogy from  the  decisions  on  kindred  questions,  the  better 
rule  would  seem  to  be  that  executions  issued  after  judg- 
ment rendered,  but  before  recording  it,  contrary  to  stat- 
ute, are  only  voidable,  liable  to  be  quashed  on  motion. 
For  example,  there  is  almost  no  dispute  but  that  an  exe- 
cution is  merely  irregular,  and  not  void,  by  reason  of 
being  issued  while  execution  is  stayed  by  statute,  agree- 
ment of  the  parties,  or  order  of  court  (17). 

§26.  Same:  After  judgment  becomes  dormant.  At 
common  law,  execution  should  not  issue  more  than  a  year 
and  a  day  after  the  judgment  was  rendered,  without  first 
reviving  the  judgment  by  scire  facias ;  and  now,  though 
the  time  is  considerably  extended  by  statute,  it  is  usually 
provided  that  after  the  specified  time  execution  shall  not 
issue  without  special  order  of  the  court  upon  hearing 
after  notice  to  the  defendant.  Yet  an  execution  issued 
after  the  year  and  a  day  at  common  law,  or  after  the 
time  specified  in  the  statute,  without  scire  facias  or  other 
appropriate  proceeding,  was  never  held  to  be  void,  but 
only  liable  to  be  set  aside  on  the  defendant's  motion.    He 


(16)  Locke  V,  Hubbard,  9  S.  Dak.  364. 

(17)  Bacon  v.  Cropsey,  7  N.  Y.  195. 


ATTACHMENT,  GAEXISHMENT,  EXECUTION     363 

could  not  attack  it  collaterally,  and  no  one  else  could  ob- 
ject at  all  (18). 

§  27.  Same:  After  judgment  outlawed.  An  execution 
issued  on  a  judgment  which  is  outlawed  so  that  action 
could  not  be  maintained  on  it,  is  generally  held  to  be  void, 
and  the  purchaser  at  the  sale  thereunder  acquires  no 
title  (19).  But  when  the  execution  was  issued  before  the 
judgment  was  outlawed,  and  the  sale  was  advertised  and 
made  afterwards,  the  title  of  the  purchaser  was  held  to  be 
good  (20). 

§  28.  Same:  After  judgment  satisfied.  There  is  some 
conflict  in  the  decisions,  but  the  decided  weight  of  author- 
ity is  to  the  effect  that  an  execution  issued  after  the 
judgment  is  satisfied,  or  even  a  sale  after  the  judgment 
is  satisfied  on  an  execution  issued  before,  passes  no  title, 
even  though  the  satisfaction  had  not  been  entered  on  the 
record,  and  the  purchaser  paid  full  value  without  notice 
(21). 

§29.  Same:  After  death  of  a  party.  At  common  law, 
execution  issued  after  the  death  of  a  sole  plaintiff  was 
irregular,  unless  he  was  only  the  nominal  plaintiff,  or  the 
judgment  had  been  sold  during  his  life,  or  revived  on 
scire  facias  after  his  death ;  and  a  few  courts  have  held 
such  executions  void.  But  the  judgment  did  not  have  to 
be  revived  because  of  the  death  of  one  of  several  plain- 
tiffs ;  and  even  the  death  of  a  sole  plaintiff  after  execu- 


(18)  Mariner  v.  Coon,  16  Wis.  465. 

(19)  Freeman  on  Executions,  §  27a. 

(20)  Lundeman  v.  Hirtli,  96  Mich.  17. 

(21)  Wills  V.  Chandler.  2  Fed.  Rep.  273. 


364     ATTACHMENT,  GARNISHMENT,  EXECUTION 

tion  issued  did  not  abate  it  (22).  If  tlie  sole  defendant 
dies  before  the  lien  attaches,  the  execution  is  generally 
held  to  be  too  late,  but  the  writ  is  not  abated  by  his  death 
after  the  lien  attaches  (23) ;  and  the  death  of  one  of  sev- 
eral defendants  is  generally  held  not  to  prevent  issuing 
executions  against  all  afterward,  and  levying  them  upon 
the  property  of  the  survivors  without  first  reviving  the 
judgment. 

Section  3.    Effect  of  Use  of  One  Process  on  Right  to 

Another. 
§  30.  Whether  a  levy  is  satisfaction.  A  creditor  who 
has  sued  out  any  execution  or  attachment  may  omit  to 
execute  it,  and,  before  it  is  returned  or  returnable,  take 
out  a  capias  (ad  respondendum  or  ad  satisfaciendum) 
and  arrest  the  defendant  thereon.  But  after  the 
property  has  been  taken  under  the  other  writ,  he 
cannot  have  or  use  a  capias  till  the  other  is  com- 
pletely executed  and  returned  (24).  There  are  many  de- 
cisions and  text-books  in  which  this  doctrine  is  stated  in 
round  terms  as  applying  to  all  forms  of  writs.  It  was 
once  said  that  a  mere  levy  is  a  satisfaction.  That  doc- 
trine was  completely  exploded  by  Judge  Cowen  in  Green 
v.  Burke  (25),  yet  one  often  sees  the  statement  that  a 
levy  is  prima  facie  a  satisfaction,  which  is  equally  false. 
All  that  is  meant  by  these  expressions  is  that  the  creditor 
will  not  be  permitted  to  harass  the  debtor,  after  having 
levied  on  enough  property  to  make  his  debt  secure.  De- 
cisions are  abundant  in  which  defenses  to  attachments, 


(22)  Clerk  v.  Withers,  1  Salk.  322. 

(23)  People  v.  Bradley,  17  111.  485. 

(24)  Miller  v.  Parnell,  6  Taunton,  370. 

(25)  23  Wend.  490. 


ATTACHMENT,  GAEXISHMENT,  EXECUTION     365 

on  the  ground  that  they  were  issued  and  levied  while 
other  property  was  held  under  other  attachments  for  the 
same  debt,  have  been  denied.  Again,  there  are  plenty  of 
decisions  denying  similar  objections  to  levies  under  exe- 
cutions, while  property  was  held  under  other  executions 
on  the  same  judgment.  And  it  is  admitted  by  all  courts 
that  the  issuing  and  use  of  several  similar  executions 
on  the  same  judgment,  at  the  same  time,  may  and  should 
be  allowed  by  the  court  wherever  the  ends  of  justice  re- 
quire it.  Though  these  were  issued  without  special  order 
by  the  court,  the  sales  under  them  would  probably  not  be 
held  void,  but  only  voidable.  Yet  there  are  some  decisions 
holding  sales  absolutely  void,  when  made  after  property 
had  been  seized  under  a  previous  writ,  and  released  by 
plaintiff's  orders  without  the  consent  of  the  defendant 
(26). 

§31.  Second  execution  on  attachment  judgment. 
"Whether  there  may  be  more  than  one  execution  issued 
on  a  judgment  rendered  in  an  attachment  proceeding, 
in  which  the  defendant  was  not  personally  served  and 
did  not  appear,  is  a  point  on  which  opposing  decisions 
have  been  rendered,  in  the  absence  of  any  statute  direct- 
ing that  such  second  execution  may  issue;  and  it  is  be- 
lieved that  no  such  special  statute  will  be  found  in  any 
state.  In  an  Illinois  case  (27),  the  supreme  court  of  the 
state  said  that,  by  the  return  of  the  first  execution  un- 
satisfied, the  attachment  proceeding  and  the  possession 
of  the  attached  property  were  in  effect  abandoned;  and 
that  no  further  process  could  issue. 


(26)  For  full  discussion  see  Green  v.  Burke,  23  Wend.  490. 

(27)  Keeley  Brewing  Co.  v.  Carr,  198  111.  492. 


366     ATTACHMENT,  GARNISHMENT,  EXECUTION 

In  a  Minnesota  case  (28)  it  was  also  lield  that  the  sale 
on  an  alias  execution  issued  in  such  a  case  passed  no 
title,  because  by  ordering  the  return  of  the  first  the  plain- 
tiff had  abandoned  the  proceeding,  though  the  first  was 
returned  because  the  plaintiff  thought  that  the  election 
of  a  new  sheriff  had  left  his  old  writ  unexecutable,  but 
the  court  held  that  the  new  sheriff  should  have  made  the 
sale  on  the  old  writ,  which  is  peculiar. 

But  in  a  Montana  case  (29)  it  was  held  that  the  return 
of  the  attachment  after  levy,  with  an  indorsement  thereon 
that  no  property  could  be  found  other  than  that  attached, 
and  the  subsequent  issuance  and  levy  of  an  execution, 
were  not  an  abandonment  of  the  attachment  and  the  lien 
thereon,  and  that  the  attaching  creditor  might  then  main- 
tain a  bill  in  equity  to  have  an  assignment  of  the  attached 
property  declared  fraudulent  and  void. 

Section  4.  Who  May  Demand  and  Control  Process. 
§  32.  Every  person  owning  a  claim.  It  is  only  justice 
that  all  men  should  be  equal  before  the  law.  Every  judg- 
ment creditor  may  have  his  judgment  enforced  by  exe- 
cution, if  the  nature  of  the  judgment  warrants  it.  Any- 
one may  employ  attachment  and  garnishment  to  secure 
the  payment  of  his  claim,  unless  excluded  by  the  plain 
terms  of  the  statute  or  by  his  own  acts.  The  United 
States,  any  state,  a  corporation,  or  an  assignee  of  the  de- 
mand, may  employ  attachment  or  garnishment,  though  it 
or  he  and  the  defendant  are  both  non-residents,  and  the 


(28)  Butler  v.  White,  25  Minu.  432. 

(29)  Merchant's  Bank  v.  Greenwood,  16  Mont.  395,  448.     See  also 
Van  Camp  v.  Searle,  147  N.  Y.  150,  162. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     367 

non-residence  of  the  defendant  is  the  ground  for  the  at- 
tachment (30). 

§  33.    Only  persons  interested  in  claim.    Tlie  owner  of 
the  demand,  and  he  only,  has  a  right  to  have  it  enforced, 
and  to  control  the  means  of  enforcement  (31).    If  he  is 
absolute  owner  he  has  the  sole  right  to  control.    If  there 
are  several  part  owners,  the  rights  of  all  will  be  pro- 
tected, respect  being  given  to  the  wish  of  the  majority. 
If  one  has  a  paramount  lien  without  owning  the  legal 
title,  that  will  be  protected.    Thus,  when  an  execution  on 
A's  judgment  against  B  was  levied  by  the  sheriff  on  B's 
judgment  against  C,  which  the  statute  allowed,  and  there- 
after, with  notice  of  the  levy,  C  paid  B,  and  B  entered 
satisfaction  on  his  judgment  record— this  did  not  defeat 
A's  lien,  but  the  court  set  aside  the  satisfaction  and  ord^ 
ered  execution  to  be  issued  on  B's  judgment,  so  that  the 
sheriff  could  collect  it  to  satisfy  A's  judgment  (32).    Offi- 
cers of  court  have  no  lien  on  the  judgment  for  the  amount 
of  their  unpaid  fees;  and,  therefore,  the  sheriff  cannot 
proceed  on  the  writ  in  his  hands  to  collect  his  fees  after 
the  parties  have  settled  (33),  nor  refuse  to  accept  the 
plaintiff's  bid  at  the  sale  because  the  plaintiff  would  not 
pay  his  fees.    Those  having  this  right  to  control  will  be 
protected  by  the  court  against  its  officers,  the  plaintiff 
of  record,  and  all  persons  presuming  to  interfere. 

§  34.    Writs  issued  on  others'  orders  axe  valid.    Yet  an 


(30)  Attachment  §§  43-45,  Century  Digest. 

(31)  Daugherty  v.  Moon,  59  Tex.  307. 

(32)  Henry  v.  Tray  nor,  42  Minn.  234. 

(33)  Wills  V.  Chandler,  2  Fed.  Rep.  273. 


368     ATTACHMENT,  GARNISHMENT,  EXECUTION 

execution  issued  in  the  name  of  the  judgment  creditor 
without  his  consent  is  not  void.  It  will  protect  an  officer 
acting  without  notice  of  the  want  of  authority  to  issue  it, 
and  will  pass  title  to  the  purchaser  (34). 

§  35.  Remedies  of  persons  injured.  Nevertheless,  the 
plaintiff  may  have  the  execution  set  aside  even  after  sale 
to  an  innocent  purchaser,  unless  the  full  price  bid  has 
been  paid.  If  the  clerk  refuses  to  issue  process  on  the 
owner's  demand,  or  the  sheriff  refuses  to  obey  his  orders 
in  executing  it,  he  may  sue  for  damages  on  the  offend- 
ing officer's  official  bond,  move  the  court  to  amerce  him 
till  he  obeys,  and  in  many  cases  have  mandamus  to  him 
from  the  higher  courts  (35). 

§  36.  Fonn  of  demajid  and  proof  of  authority.  The 
person  thus  entitled  to  control  the  processes  may  do  so 
in  person,  in  opposition  to  his  attorney  of  record,  or  he 
may  act  through  an  agent,  whether  such  agent  is  an  at- 
torney or  not.  No  particular  form  of  demand  is  neces- 
sary; and  failure  to  give  proof  of  authority  to  command 
is  no  excuse  to  the  officer  for  not  acting,  unless  he  de- 
manded such  proof;  but  officers  have  a  right  to  demand 
reasonable  proof  of  authority,  before  obeying  one  as- 
suming to  control  (36). 

Section  5.    Against  Whom  Process  May  Issue. 

§  37.    Parties  only.     Execution   can  be   issued   only 

against  the  parties  cast  in  the  judgment ;  and  attachment 

and  garnishment  can  be  directed  only  against  the  effects 

of  the  persons  sued.    The  execution  must  conform  to  the 


(34)  Sowles  V.  Harvey,  20  Ind.  217. 

(35)  State  v.  Herod.  6  Blackf.  (Ind.)  444. 

(36)  Daugherty  v.  Moon,  59  Tex.  307. 


ATTACHMENT,  GAENISHMENT,  EXECUTION     369 

judgment  to  be  enforced.  The  insertion  into  it  of  the 
names  of  persons  as  defendants,  who  are  not  such,  would 
protect  an  innocent  officer  in  seizing  their  property,  but 
would  not  pass  title  to  the  purchaser,  though  the  persons 
so  named  as  defendants  were  equally  liable  with  the  real 
defendants  for  the  payment  of  the  debt  represented  by 
the  judgment  (37).  For  the  same  reason,  the  garnishee 
cannot  be  charged  for  his  liability  to  a  stranger,  who 
is  co-debtor  with  the  defendant  on  the  debt  sued  for,  nor 
for  what  the  garnishee  owes  to  the  plaintiff. 

§  38.  All  defendants.  Every  party  cast  in  judgment  ia 
liable  to  execution.  It  matters  not  who  he  may  be.  If 
judgment  may  be  recovered  it  may  be  enforced.  Like- 
wise, the  effects  of  every  person  sued  may  be  taken  by  at- 
tachment and  garnishment.  This  applies  to  persons  un- 
der legal  disability,  infants,  lunatics,  spendthrifts,  and 
married  women  (38). 

§39.  Any  person  may  be  garnishee.  The  statutes 
usually  provide  that  the  plaintiff  may  have  ''any  per- 
son" summoned  as  garnishee.  These  terms  are  generally 
held  to  include  natural  persons,  corporations,  non-resi- 
dents, infants,  lunatics,  married  women,  and  the  plaintiff 
himself  (39).  Several  courts  have  denied  the  plaintiff's 
right  to  charge  a  defendant  as  garnishee,  on  the  ground 
that  he  gains  no  advantage  thereby;  but  there  is  an  ad- 
vantage where  the  same  person  is  sued  in  one  capacity, 
and  summoned  as  garnishee  in  another,  and  such  garnish- 


es?)    Hamner  v.  Ballantyne,  13  Utah,  324. 

(38)  Dillon  V.  Burnham,  43  Kan.  77. 

(39)  Wilder  v.  Eldridge,  17  Vt.  22G. 


370     ATTACHMENT,  GARNISHMENT,  EXECUTION 

ments  have  been  sustained  in  several  cases  (40).  The 
statutes  forbidding  husband  and  wife  to  testify  against 
each  other  embarrass  attempts  to  charge  one  as  the  gar- 
nishee of  the  other. 

§  40.  Limitations  upon  right  to  process.  To  the  rules 
stated  in  the  two  preceding  subsections,  a  limitation 
arises  from  the  fact  that  the  administration  of  public 
business  cannot  be  diverted  from  its  proper  channels  nor 
interrupted  to  advance  the  interests  of  any  individual, 
and  one  department  of  the  state  cannot  command  and  re- 
quire obedience  of  another,  except  as  authority  to  do  so 
is  given  it  by  law.  For  this  reason,  courts  cannot  audit 
and  compel  payment  of  claims  against  the  state,  nor  en- 
force their  judgments  when  the  legislature  requests  them 
to  audit  such  claims,  nor  require  the  other  departments 
of  the  state  to  answer  before  them  as  garnishees.  For 
the  same  reason,  one  court  cannot  interrupt  the  business 
of  any  other  court  by  requiring  its  officers  to  answer  as 
garnishee  for  property  held  by  them  as  such  officers,  nor 
by  seizing  the  property  in  their  possession.  The  same 
reason  forbids  the  seizure  of  any  property  used  by  any 
governmental  agency— city,  county,  town,  or  public  board 
—in  the  performance  of  its  public  trust ,  and  is  generally 
held  to  prevent  requiring  such  agencies  to  respond  as 
garnishees  for  property  in  their  possession  belonging  to 
the  defendant,  or  debts  they  may  owe  him.  Public  ser- 
vice corporations— transportation  companies,  water  com- 
panies, etc.— are  generally  held  to  come  within  the  reason 
of  this  limitation,  in  so  far  that  the  property  used  by 


(40)     Brown  v.  Wiley,  107  Ga.  85. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     371 

them  in  the  performance  of  their  public  trust  cannot  be 
seized  on  execution  against  them ;  and  where  the  perfor- 
mance of  their  public  duties  would  be  interrupted  there- 
by they  cannot  be  required  to  answer  as  garnishees  in 
suits  against  other  persons. 

Section  6.    What  Courts  and  Officers  May  Issue 
Process. 

§  41.  Every  court  may  enforce  its  judgments.  It  would 
be  idle  to  adjudicate,  if  without  power  to  enforce ;  there- 
fore, authority  to  pronounce  necessarily  implies  authority 
to  execute  (41).  For  example,  a  sale  of  land  on  an  execu- 
tion issued  by  a  county  court  not  expressly  authorized 
to  issue  executions  was  sustained  in  the  following  lan- 
guage: ''The  act  establishes  a  court  of  record,  and  in 
general  terms  confers  upon  it  the  powers  and  duties  of  a 
court  of  record.  The  power  to  issue  executions  is  incident 
to  such  courts,  unless  denied,  and  no  such  denial  is  found 
in  the  act  (42)."  But  a  statute  giving  one  court  author- 
ity to  issue  a  special  process  unknown  to  the  common  law 
does  not  impliedly  authorize  other  courts  to  issue  such 
processes. 

§  42.  No  court  can  issue  process  on  judgments  of  other 
courts.  Only  the  court  in  which  the  action  is  pending  or 
which  rendered  the  judgment  can  issue  process  to  en- 
force it,  unless  the  original  record  has  been  removed  to 
some  other  court,  or  there  is  some  statutory  provision  au- 
thorizing some  other  court  to  issue  process  to  enforce 
it.    Except  in  these  cases,  executions,  attachments,  and 


(41)  Kentzler  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  47  Wis.  641. 

(42)  Bailey  v.  Winn,  101  Mo.  649,  659. 


372     ATTACHMENT,  GAENISHMENT,  EXECUTION 

garnisliments,  issued  from  any  other  court  would  be  void, 
and  the  sale  thereunder  would  pass  no  title  (43).  Stat- 
utes providing  that  the  filing  of  a  transcript  of  a  judg- 
ment of  one  court  in  the  court  of  another  county,  or  in 
another  court  in  the  same  county,  shall  have  the  effect 
of  creating  a  lien  upon  the  defendant's  property,  or 
shall  have  some  other  effect,  do  not  impliedly  authorize 
the  courts  in  which  such  transcripts  are  filed  to  issue  exe- 
cutions thereon,  and  executions  so  issued  are  void  (44). 
For  the  same  reason,  garnishments  so  issued  would  be 
void. 

§  43.    When  process  from  other  courts  is  authorized. 

In  cases  of  appeal,  if  the  appeal  has  the  effect  of  destroy- 
ing the  judgment  appealed  from,  as  is  usually  the  case 
where  appeal  is  taken  from  the  judgment  of  a  justice 
of  the  peace,  no  process  can  afterward  be  issued  on  that 
judgment  by  any  court,  but  the  court  above  issues  exe- 
cution on  its  own  judgment  when  rendered.  In  other 
cases  the  judgment  is  not  generally  nullified  by  the  appeal, 
and  the  court  below  issues  the  execution  to  enforce  its 
judgment  when  it  is  affirmed,  unless  some  statute  gives 
the  court  above  authority  to  do  so,  or  unless  the  original 
record  was  sent  up.  Where  statutes  provide  that  exe- 
cution may  issue  from  a  court  in  which  a  transcript  of 
the  judgment  of  another  has  been  filed,  it  is  generally  held 
that  the  judgment  does  not  become  a  judgment  of  the 
court  where  the  transcript  Is  filed,  except  for  the  purposes 
specified  in  the  statute.    When  the  transcript  is  taken 


(43)  Clarke  v.  Miller,  18  Barbonr  (N.  Y.)  2G9. 

(44)  Bostwick  v.  Benedict,  4  S.  Dak.  414. 


ATTACHMENT,  GAENISHMENT,  EXECUTION     373 

from  a  justice  court,  it  is  generally  held  that  the  justice 
who  rendered  the  judgment  thereby  loses  authority  to 
enforce  it,  revive  it,  or  do  anything  further  concerning  it 
(45) ;  and  it  seems  that  the  same  rule  might  well  be  ap- 
plied where  the  transcript  is  taken  from  one  superior 
court  to  another  for  the  same  purpose ;  but  there  are  sev- 
eral decisions  holding  in  such  cases  that,  after  the  tran- 
script has  been  sent,  the  court  that  rendered  the  judg- 
ment may  set  it  aside,  receive  payment  of  it,  issue  an- 
other transcript  to  another  county,  or  revive  it  on  scire 
facias  (46). 

§  44.  Only  by  the  proper  officer.  No  process  is  valid 
unless  issued  by  the  oflBcer  authorized  by  law  or  by  his 
direction;  and  in  several  cases  process  issued  by  the 
proper  officer  has  been  held  absolutely  void,  because  he 
thoughtlessly  added  to  his  signature  some  title  in  place  of 
the  name  of  his  office,  as  when  the  clerk  of  the  court  was 
also  justice  of  the  peace  and  added  that  title  instead  of 
clerk  (47).  These  decisions  seem  clearly  wrong,  on  the 
ground  that  it  is  no  worse  than  if  he  had  not  signed  at 
all,  a  matter  we  shall  presently  consider  (§§  53-55).  Offi- 
cers are  not  usually  allowed  to  act  in  their  own  cases ;  but 
it  has  been  held  that  an  attachment  issued  by  a  clerk  in 
his  own  case,  upon  his  presenting  to  himself  his  own  affi- 
davit for  the  same,  was  valid,  because  no  one  else  could 
issue  the  writ,  and  the  issuance  of  it  was  not  judicial, 
but  purely  ministerial  and  without  discretion  (48).    The 

(45)  Rahm  v.  Soper,  28  Kan.  529. 

(46)  Nelson  v.  Guffey,  131  Pa.  St  273. 

(47)  Perry  v.  Whipple,  38  Vt  27a 

(48)  Evans  v.  Etherldge,  90  N.  a  42. 


374     ATTACHMENT,  GARNISHMENT,  EXECUTION 

writ  is  generally  held  good  thougli  issued  by  a  deputy  not 
authorized  by  law  or  not  duly  appointed. 

Section  7.    Foem  and  Essentials  of  Papers. 

§  45.  Attachment  and  garnishment  affidavits:  Want- 
ing or  defective.  Most  of  the  statutes  require  an  affidavit 
to  certain  matters  to  be  filed  before  the  attachment  or 
garnishment  shall  be  issued,  and  generally  provide  for 
the  supplying  of  defects  by  amendment.  If  no  affidavit 
is  made,  or  only  one  so  seriously  defective  that  it  cannot 
be  amended,  the  attachment  or  garnishment  must  of 
course  fall,  when  directly  attacked  for  that  reason  by  the 
defendant  or  garnishee ;  and  fully  half  of  the  courts  have 
held  that  the  want  of  a  sufficient  affidavit  may  be  set  up  by 
the  defendant  or  any  other  person  to  avoid  the  proceed- 
ing collaterally.  Others  hold  attachment  and  garnish- 
ment proceedings  not  open  to  collateral  attack  for  want 
of  the  statutory  affidavit  (49). 

§  46.  What  is  a  sufficient  affidavit:  By  and  before 
whom  sworn  to.  If  the  statute  does  not  provide  by  whom 
it  shall  be  made,  the  affidavit  can  be  made  by  any  one  act- 
ing for  the  creditor  and  possessing  personal  knowledge 
of  the  facts ;  but  if  the  statute  requires  it  to  be  made  by 
one,  the  affidavit  of  another  will  not  do.  So,  too,  the  oath 
may  be  administered  by  any  officer  competent  to  admin- 
ister oaths  generally,  unless  the  statute  otherwise  pro- 
vides. 

§  47.  When  sworn  to.  It  should  be  sworn  to  before  the 
writ  issues,  and  not  so  long  before  as  to  raise  a  presump- 


(40)     Cooper  V.  Reynolds.  10  Wall.  308. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     375 

tion  that  the  facts  have  since  changed.     One  sworn  to 
the  day  before  was  held  bad  in  Michigan  (50). 

§  48.  Substance.  The  averments  should  be  so  positive 
that  perjury  could  be  assigned  on  them,  and  disjunctive 
forms  of  statement  avoided;  but,  with  these  limitations, 
it  is  always  safest  to  follow  the  words  of  the  statute  rather 
than  to  choose  phrases  which  seem  equivalent  to  them; 
for  the  court  may  entertain  a  different  opinion  on  that 
matter,  and  the  statute  is  the  sole  requirement.  The  affi- 
davit is  not  sufficient  unless  it  shows  every  fact  which  the 
statute  requires  it  to  show;  but,  on  the  other  hand,  it  is 
not  defective  because  any  other  matter  is  not  shown  by 
it.  For  example,  when  the  statute  does  not  require  these 
things,  it  need  not  show  that  it  is  made  in  behalf  of  the 
plaintiff,  that  suit  has  been  commenced,  how  much  is  due, 
that  anything  is  due,  that  the  garnishee  is  a  corporation, 
etc.  (51). 

§  49.  Accuracy  and  certainty.  An  allegation  of  one 
ground  will  not  sustain  an  attachment  or  garnishment 
on  another ;  an  allegation  of  one  debt  will  not  sustain  an 
attachment  on  another;  one  cannot  be  charged  as  gar- 
nishee on  an  affidavit  alleging  indebtedness  by  another^ 
by  him  and  others,  or  by  him  alone  in  another  capacity. 
The  affidavit  must  be  sufficiently  specific  and  accurate  on 
these  matters  to  identify  the  persons,  obligations,  etc.; 
but  the  same  affidavit,  containing  all  essential  averments, 
will  sustain  an  attachment  and  garnishment,  or  several 
garnishments. 


(50)  Wilson  V.  Arnold,  5  Mich.  98. 

(51)  Burnham  v.  Doolittle,  14  Neb.  214. 

Tol.  X— 2  6 


376     ATTACHMENT,  GAENISHMENT,  EXECUTION 

§  50.  Form.  The  affidavit  should  be  signed  by  the 
affiant,  signed  by  the  officer  administering  the  oath;  and, 
if  made  in  a  pending  cause,  it  should  be  entitled  in  the 
court  and  cause.  But  errors  in  any  of  these  respects  are 
not  generally  held  to  be  fatal  if  the  essential  facts  appear 
from  the  papers  as  a  whole  or  are  othei-wise  shown  (52). 

JUSTICE    COURT    GABNISHMENT    AFFIDAVIT    IN    MICHIGAN. 

State  of  Michigan,  County  of  Washtenaw,  ss. 

John  Smith,  agent  for  William  Smith,  being  duly  sworn,  says  that  John 
Brown  and  WMlliam  Brown  are  justly  indebted  to  said  Wm.  Smith  upon 
express  and  implied  contract  in  the  sum  of  ninety-four  dollars,  or  there- 
abouts, and  that  for  the  recovery  of  said  demand  said  John  Smith  has 
commenced  suit  before  John  Barnes,  one  of  the  justices  of  the  peace  in 
and  for  said  county. 

And  this  deponent  further  says,  that  he  has  good  reason  to  believe  and 
does  believe,  that  the  Michigan  Central  Railroad  Company,  a  corporation 
under  the  laws  of  Michigah,  is  indebted  to  said  John  Brown  and  William 
Brown,  and  to  each  of  them,  and  has  property,  money,  and  effects  in  its 
possession  belonging  to  said  John  Brown  and  William  Brown,  and  to 
each  of  them.  John  Smith. 

Subscribed  and  sworn  to  before  me 

this  11th  day  of  October,  A.  D.  1901. 

John  Barnes,  Justice  of  the  Peace. 

AFFIDAVIT   FOB   ATTACHMENT   IN   ILLINOIS   ClBCmT   COUBT. 

State  of  Illinois,  County  of  Cook,  ss. 

John  Smith,  being  duly  sworn,  says  that  John  Brown  and  William 
Brown  are  justly  indebted  to  William  Smith  in  a  sum  exceeding  twenty 
dollars,  to  wit,  the  sum  of  two  hundred  and  twenty-five  dollars,  after 
allowing  all  just  credits  and  set-offs;  and  that  the  said  indebtedness  is 
due  for  goods  sold  and  delivered.  And  this  deponent  further  says,  that 
said  John  Brown  and  William  Brown  are  not  residents  of  this  state,  and 
that  upon  diligent  inquiry  affiant  has  not  been  able  to  ascertain  the  place 
of  residence  of  them  or  either  of  them.  John  Smith. 

Subscribed  and  sworn  to  before  me 

this  14th  day  of  October,  A.  D.  1901. 
Julius  Reitz,  Notary  Public. 

§  51.  Attachment  bonds.  That  the  creditor  shall  file  a 
bond  before  the  writ  issues  is  another  requirement  con- 


(52)     Burnham  v.  Doolittle,  14  Neb.  214;  Stout  v.  Folger,  34  Iowa,  71. 


ATTACHMENT,  GAENISPIMENT,  EXECUTION     377 

tained  in  most  attaeliment  statutes.  This  requirement 
is  not  usual  in  garnishment  statutes,  probably  because 
garnishments  do  not  interfere  with  the  possession  nor 
interrupt  the  use  of  the  property  as  attachments  do.  The 
decisions  upon  the  effect,  in  collateral  attack,  of  the  fail- 
ure to  give  a  bond  when  required,  or  such  a  one  as  is  re- 
quired, are  as  much  in  conflict  as  the  decisions  upon  the 
kindred  questions  of  affidavits  wanting  or  defective  (§  45, 
above),  and  the  reasons  in  both  cases  are  the  same.  But 
the  courts  are  agi-eed  that  failure  to  file  a  bond  at  the 
time,  in  the  amount  and  terms,  and  executed  by  the  per- 
sons required  by  the  statute,  is  fatal  on  a  direct  attack 
by  the  debtor,  unless  the  statute  has  provided  a  means  of 
curing  the  defect.  Even  a  deposit  in  court  of  the  amount 
in  money  would  not  do  (53). 

§  52.  Form  and  essentials  of  processes:  Parts  of 
process.  The  parts  of  judicial  processes— original,  mesne, 
and  final— are:  (1)  the  venue  (State  of  Michigan,  Wash- 
tenaw county,  ss.),  which  shows  where  the  subject-matter 
and  proceeding  is  located;  (2)  the  title  as  to  the  court 
(In  the  circuit  court  for  Washtenaw  county) ,  which  shows 
what  court  is  conducting  the  proceedings;  (3)  the  title 
as  to  the  cause,  if  issued  in  a  cause  already  commenced 
(Ella  Glazier  v.  City  of  Ypsilanti),  which  shows  in  what 
cause  the  process  is  issued;  (4)  the  style  (In  the  name 
of  the  People  of  the  State  of  Michigan),  which  shows  what 
authority  gives  the  commands  contained  in  the  process; 
(5)  the  address  (To  the  sheriff  of  Washtenaw  county, 
Greeting) ,  which  shows  to  whom  the  commands  contained 


(53)     Drake  on  Attachment  §  115. 


378     ATTACHMENT,  GARNISHMENT,  EXECUTION 

in  the  process  are  given ;  (6)  the  hody,  which  should  con- 
tain an  explicit  statement  of  what  is  commanded  to  be 
done,  when  it  is  to  be  done,  and  how;  (7)  the  teste  (Wit- 
ness the  Hon.  E.  D.  Kinne,  circuit  judge,  at  the  city  of  Ann 
Arbor,  Washtenaw  county,  this  23d  day  of  December, 
A.  D.  1901),  which  once  indicated  the  final  approval  of  the 
process  by  the  sovereign  or  his  proper  officer,  together 
with  the  time  and  place  when  and  where  that  approval 
was  given;  (8)  the  clerk's  signature  at  the  end  (Jacob  F. 
Schuh,  clerk  of  said  court,  by  John  Clark,  deputy) ;  (9) 
the  seal  of  the  court,  if  it  has  a  seal,  impressed  upon  the 
process  at  the  left  of  the  clerk's  signature,  to  prove  that 
the  process  is  genuine;  and  (10)  indorsements  such  as 
are  required  by  the  statutes  and  court  rules  (e.  g,  A.  J. 
Sawyer  &  Son,  Ann  Arbor,  Mich.,  attorneys  for  plaintiff). 

§  53.  What  formal  parts  are  essential.  The  venue  and 
titles  are  usually  omitted  from  many  kinds  of  process, 
and  probably  the  practice  is  not  uniform  as  to  giving  or 
omitting  them  on  any  particular  kind.  Such  matters  can 
usually  be  settled  in  any  state  without  much  difficulty  in 
any  case,  by  consulting  the  forms  used  there.  But  a 
question  of  more  serious  character,  and  much  harder  to 
answer,  is  this :  What  is  the  effect  of  an  omission  of  any 
part  required  by  inveterate  practice,  the  court  rules,  the 
statutes,  or  the  constitution?  The  difficulty  in  answering 
this  question  consists  in  the  fact  that  no  distinction,  as 
to  the  importance  of  the  various  required  parts,  or  be- 
tween the  various  kinds  of  processes,  is  agreed  to ;  except 
that  processes  issued  before  judgment  have  to  be  passed 
upon  by  the  court,  and  their  validity  or  invalidity  is  made 


ATTACHMENT,  GARNISHMENT,  EXECUTION     379 

res  judicata  by  the  judgment  if  the  court  had  acquired 
jurisdiction.  Almost  any  sort  of  proposition  concerning 
almost  any  part  of  any  process  can  be  sustained  by  re- 
spectable authority,  and  refuted  by  authority  equally  re- 
spectable. 

§54.  Same  (continued).  Some  may  lightly  answer 
that  that  is  a  small  matter,  depending  upon  the  local  prac- 
tice. But  is  it  a  matter  of  practice  merely?  In  direct  at- 
tacks it  may  be  conceded  that  substantial  departures 
from  prescribed  form  would  be  enough  to  avoid  the  pro- 
ceedings. But  how  about  collateral  attacks?  For  ex- 
ample, when  we  come  to  look  at  the  decisions,  we  find 
execution  sales  held  void  on  collateral  attack,  because 
the  writ  was  not  sealed,  as  required;  and  the  next  min- 
ute we  find  a  decision  holding  that  the  omission  is  not  even 
ground  for  quashing  the  writ  on  direct  attack  (54).  Simi- 
lar illustrations  might  be  given  of  almost  any  other  part. 
One  judge  says:  "If  you  may  omit  this  part,  you  may 
omit  that ;  if  you  may  omit  two  parts,  you  may  omit  ten. 
And  what  is  there  left?  Where  will  you  draw  the  line,  if 
not  on  the  one  side  or  on  the  other?"  He  puzzles  us, 
and  we  cannot  answer  him.  Another  judge  compares  the 
process  to  a  man,  and  asks  if  cutting  off  a  foot  would  de- 
prive a  descendant  of  Adam  of  his  title  to  manhood.  How 
much  may  be  cut  away  and  the  man  still  live?  Delighted 
with  this  judge's  wit  and  his  evident  love  of  justice,  we 
willingly  follow  him  anywhere,  perhaps  too  far. 

§  55.  Same  (continued) .  In  a  recent  treatise  on  this 
subject,  the  writer  takes  up  separately  the  various  parts 


(54)     Sidwell  v.  Schumacher,  99  111.  426 ;  Lowe  v.  Morris,  13  Ga.  147. 


380     ATTACHMENT,  GARNISHMENT,  EXECUTION 

of  the  process,  except  the  body;  and,  after  citing  and 
commenting  on  several  decisions  on  both  sides  as  to  that 
particular  part,  concludes  in  each  case  that  the  process 
should  not  be  held  void,  but  voidable  at  most,  for  want  of 
that  part.  However,  this  writer  does  not  bother  himself 
to  answer  the  question  above  suggested,  as  to  whether 
a  writ  would  be  valid  which  contained  none  of  these  parts 
but  the  body  (55).  Probably  the  majority  of  the  deci- 
sions upon  each  of  these  points  agree  with  the  conclusions 
reached  by  this  writer.  They  more  nearly  accomplish 
the  ends  of  justice,  and  seem  to  be  correct,  on  the  prin- 
ciple that  the  law  favors  substance  rather  than  form,  and 
will  not  deny  substantial  rights  because  of  the  misprison 
of  a  public  officer. 

§  56.  Body  of  process:  As  a  summons.  Attachment 
and  garnishment  writs  serve  two  objects,  or  consist  of  two 
parts,  the  command  to  summon  and  the  command  to  at- 
tach; but  executions  need  usually  contain  no  summons. 
The  summons  should  accurately  specify  who  is  to  be 
summoned,  and  when  and  where  he  is  to  appear ;  but  mis- 
takes in  the  name,  or  omissions  of  it,  may  be  cured  by 
amendment,  whenever  the  mistake  is  discovered  or  ob- 
jection made,  and  will  not  justify  the  party  served  in 
disregarding  it.  Statements  of  a  past  time  or  an  im- 
proper time  or  place,  and  failure  to  state  any  time  or 
place  at  all,  are  cured  by  appearance  at  the  proper  time 
and  place  without  making  objection ;  but  will  often  cause 
the  writ  to  be  abated  on  proper  objection  at  the  first  op- 
portunity.   The  risk  of  its  being  valid  is  too  great  ever  to 


(55)     See  Alderson  on  Judicial  Writs,  §§  14-42. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     381 

justify  disregarding  it.    The  writ  may  be  bad  as  a  sum- 
mons  and  yet  good  as  an  attachment. 

§  57.  Same:  As  an  attachment.  Naming  the  parties. 
The  rules  as  to  the  essentials  of  the  body  of  the  execution 
are  the  same  as  those  governing  the  attachment  and  gar- 
nishment writs  in  so  far  as  these  are  merely  attachments. 
In  all  of  these  cases  the  writ  should  clearly  state  in  what 
action  or  on  what  judgment  it  is  issued,  whose  property 
is  to  be  taken,  what  kind  of  property,  how  much,  and  when 
return  of  the  writ  is  due.  Mistakes  in  the  names,  omis- 
sion of  some,  or  additions  of  others,  will  not,  according 
to  most  decisions,  make  the  writ  void ;  but  the  facts  may 
be  shown  by  extrinsic  evidence  (56).  Such  mistakes  will 
not  even  justify  the  officer  in  failing  to  execute  it  or  ex- 
cuse the  garnishee  for  paying  over  the  property  in  his 
hands,  provided  the  officer  in  the  one  case,  and  the  gar- 
nishee in  the  other,  really  knew  who  was  meant,  whether 
he  learned  that  from  the  writ  or  otherwise.  For  the  sake 
of  conforming  to  the  judgment,  the  execution  should  is- 
sue in  favor  of  all  the  plaintiffs  and  against  all  the  de- 
fendants, although  only  one  plaintiff  is  interested,  and 
part  of  the  defendants  are  dead,  discharged  in  bankrupt- 
cy, or  not  liable  for  any  other  reason. 

§58.  Same:  What?  How  much?  When  return?  Di- 
rection to  take  realty  first,  when  the  statute  requires  per- 
sonalty to  be  first  taken,  is  not  generally  held  to  make 
the  writ  void,  but  only  erroneous.  A  failure  to  state  how 
much  is  to  be  taken  has  been  held  to  be  a  failure  to  com- 
mand anything  to  be  taken,  justifying  the  officer  in  doing 

(56)     DeLoach  v.  Bobbins,  102  Ala.  288. 


382     ATTACHMENT,  GARNISHMENT,  EXECUTION 

nothing,  and  giving  him  no  authority  to  do  anything. 
The  writ  is  not  void  because  it  requires  too  much  or  too 
little  to  be  taken,  and  the  officer  is  not  justified  in  disobey- 
ing it  (57)  A  decisive  majority  of  the  courts  hold  that 
failure  to  state  when  the  writ  shall  be  returnable,  or  mak- 
ing it  returnable  at  an  improper  time,  do  not  make  it  void, 
nor  excuse  the  officer  in  failing  to  execute  it  (58). 

FORMS. 

EXECUTION  FROM  trNITED  STATES  CIRCUIT  COUBT  FOB  DISTRICT  OF  CALIFORNIA. 

United  States  of  America. 

The  President  of  the  United  States  of  America,  to  the  Marshal  of  the 
District  of  California,  Greeting :  You  are  hereby  commanded  that  of  the 
goods  and  chattels  of  John  Brown  in  your  district,  you  cause  to  be  made 
the  sum  of  five  thousand  four  hundred  and  twenty  dollars  to  satisfy  a 
judgment  lately  rendered  in  the  Circuit  Court  of  the  United  States  for 
the  District  of  California,  against  John  Brown  for  the  damages  which 
John  Smith  has  sustained,  as  well  by  reason  of  his  damages  as  for  the 
costs  and  charges  in  and  about  that  suit  expended,  whereof  the  said  John 
Brown  stands  convicted  as  appears  of  record.  And  if  sufficient  goods 
and  chattels  of  the  said  John  Brown  cannot  be  found  in  your  district, 
that  then  you  cause  the  amount  of  said  judgment  to  be  made  of  the  real 
estate,  land,  and  tenements  whereof  the  said  John  Brown  was  seized 
when  said  judgment  was  rendered,  May  7th,  1901,  or  at  any  time  after- 
wards, in  whose  hands  soever  the  same  may  be.  And  have  you  that 
money,  together  with  this  writ,  with  your  doings  thereon,  before  the 
judges  of  the  said  Circuit  Court,  at  the  courthouse  thereof,  in  the  city 
and  county  of  San  Francisco  and  District  of  California,  on  the  18th  day 
of  December,  A.  D.  1901,  to  satisfy  the  judgment  so  rendered  as  aforesaid. 

Witness,  the  Hon.  Melville  W.  Fuller,  Chief  Justice  of  the  Supreme 
Court  of  the  United  States  of  America,  this  10th  day  of  October,  A.  D. 
1901,  and  of  our  independence  125. 

Attest  my  hand  and  the  seal  of  said  court,  the  day  and  year  last  above 
written.  William  Moobe,  Clerk. 

[Seal]  by  Joseph  Frey,  Deputy  Clerk. 

JUSTICE  COURT  GARNISHMENT  SUMMONS  IN   MICHIGAN. 

State  of  Michigan,  County  of  Washtenaw,  ss. 

To  any  constable  of  said  county,  greeting :  In  the  name  of  the  People 
of  the  State  of  Michigan,  you  are  hereby  commanded  to  summon  the 


(57)  DeLoach  v.  Robbins,  102  Ala.  288 ;  Bacon  v.  Cropsey,  7  N.  T.  195. 

(58)  Freeman  on  Execution,  §44. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     383 

Michigan  Central  Railroad  Company  to  appear  before  me,  at  my  office, 
in  the  city  of  Ann  Arbor,  In  said  county,  on  the  ISth  day  of  October, 
A.  D.  1901,  at  nine  o'clock  in  the  forenoon,  to  answer,  under  oath,  all 
questions  put  to  it  touching  its  indebtedness  to  John  Brown  and  William 
Brown,  or  either  of  them,  and  the  property,  money,  and  effects  of  the 
said  John  Brown  and  William  Brown  in  its  possession  or  control  accord- 
ing to  the  allegations  contained  in  the  affidavit  of  John  Smith  duly  made 
and  filed  in  this  suit.  Hereof  fail  not,  and  have  you  then  and  there  this 
precept. 

Given  under  my  hand  at  the  city  of  Ann  Arbor,  in  said  county,  this 
11th  day  of  October,  A.  D.  1901. 

John  Babnes,  Justice  of  the  Peace. 

ATTACHMENT  AND  GARNISHMENT  SUMMONS  IN  ILLINOIS  CIBCUIT  COURT. 

The  People  of  the  State  of  Illinois,  to  the  Sheriff  of  Cook  County, 
Greeting : 

Whereas  John  Smith,  as  attorney  for  William  Smith,  hath  complained 
that  John  Brown  and  William  Brown  are  justly  indebted  to  said  William 
Smith  in  the  amount  of  $225.00,  and  that  the  same  is  due  for  goods  sold 
and  delivered ;  that  the  said  John  Brown  and  William  Brown  are  not 
residents  of  this  state  nor  is  their  place  of  residence  known;  and  the 
said  William  Smith  having  given  bonds  and  security  according  to  law : 
We  therefore  command  you  that  you  attach  so  much  of  the  estate,  real 
and  personal,  of  the  said  John  Brown  and  William  Brown  to  be  found 
in  your  county,  as  shall  be  of  value  sufficient  to  satisfy  the  said  debt  and 
costs,  according  to  the  complaint,  and  such  estate  so  attached  in  your 
hands  to  secure,  or  so  to  provide,  that  the  same  may  be  liable  to  further 
proceedings  thereupon,  according  to  law ;  and  that  you  summon  John 
Brown  and  William  Brown  to  appear  and  answer  the  complaint  of  the 
said  William  Smith,  at  a  court  to  be  holden  at  the  court-house  in  the 
city  of  Chicago,  in  the  county  of  Cook,  upon  the  14th  day  of  November 
next ;  and  that  you  also  summon  the  First  National  Bank  of  Chicago,  and 
such  other  persons  as  you  shall  be  requested  by  the  said  William  Smith, 
as  garnishees,  to  be  and  appear  at  the  said  court  on  the  said  14th  day  of 
November  next,  then  and  there  to  answer  to  what  may  be  objected  against 
them.  When  and  where  you  shall  make  known  to  the  said  court  how  you 
have  executed  this  writ,  and  have  you  then  and  there  this  writ. 

Witness :  John  Young,  clerk  of  the  said  court,  October  14th,  A.  D.  1901. 

[Seal]  John  Young,  Clerk. 


384     ATTACHMENT,  GARNISHMENT,  EXECUTION 


CHAPTEE  III. 

OENEUAL  INCIDENTS  AND  BEQUISITES  OF 
EXEOUTING  PBOCESS. 

§  59.  Plan  of  treatment.  Having  completed  our  survey 
of  the  questions  that  arise  concerning  the  issuance  of  the 
processes  to  enforce  judgments,  we  come  now  to  consider 
the  questions  that  arise  concerning  the  execution  of  those 
processes.  Among  these  we  may  mention:  (1)  the  legis- 
lature's power  to  change  the  remedy;  (2)  the  power  of 
the  court  and  judge  to  control  the  processes;  (3)  the  offi- 
cer's rights  and  liabilities  in  executing  the  processes; 
(4)  where  the  processes  may  run  and  be  executed;  (5) 
when  the  processes  may  be  executed;  (6)  who  may  exe- 
cute the  processes;  (7)  for  what  garnishees  may  be 
charged;  (8)  what  may  be  taken  under  attachments  and 
executions;  (9)  what  constitutes  a  valid  levy  and  serv- 
ice; (10)  the  nature  of  the  lien  acquired  by  attachments, 
garnishments,  judgments,  and  executions;  (11)  how  that 
lien  may  be  lost  or  become  subordinate;  (12)  how  it  may 
be  foreclosed.  This  order  of  arrangement  of  the  ques- 
tions is  somewhat  arbitrary,  as  was  the  arrangement  of 
the  questions  arising  concerning  the  issuance  of  the  proc- 
ess. It  is  not  possible  to  fix  any  exact  order  of  sequence. 
But  this  arrangement  brings  up  the  questions  as  nearly 
in  the  order  in  which  they  would  arise  in  practice  as  any ; 


ATTACHMENT,  GARNISHMENT,  EXECUTION     385 

and  we  shall  now  take  up  each  of  these  matters  separately 
in  the  order  named  in  this  and  the  two  chapters  following. 

Section  1.    Alteration  and  Control  of  Process. 

§  60.  Power  of  legislature  to  change  remedy.  This  and 
the  following  subsection  have  to  do  with  both  the  issuing 
and  the  execution  of  the  processes,  and  can  be  as  well 
considered  here  as  anywhere.  The  matter  of  procedure 
is  entirely  in  the  control  of  the  legislature.  It  may  make 
laws  apply  to  pending  proceedings,  though  the  result  be 
fatal  to  them.  No  vested  right  is  acquired  by  reason  of 
having  commenced  suit.  No  right  to  proceed  in  the  par- 
ticular form  is  acquired  by  reason  of  that  form  existing 
when  the  contract  was  made  (1).  The  legislature  may 
take  away  the  remedy  entirely,  or  modify  it  at  will  as  to 
all  future  transactions;  and  remedies  for  torts  may  be 
modified  and  destroyed  after  the  tort  is  committed,  and 
even  after  the  claim  has  been  reduced  to  judgment  (2). 
The  state  legislature  cannot  impair  any  remedy  existing 
at  the  time  the  contract  is  made,  so  as  to  prevent  its  use 
for  the  enforcement  of  the  judgment  recovered  on  such 
contract,  unless  an  equivalent  is  given.  This  is  because 
the  United  States  Constitution  forbids  the  states  to  pass 
any  law  impairing  the  obligation  of  contracts.  See  Con- 
stitutional Law,  §§  232-35,  in  Volume  XII. 

§61.  Judicial  control  of  process.  Every  court  has 
power,  and  is  in  duty  bound,  to  recall  its  processes,  set 
aside  them  and  the  proceedings  of  its  oflBcers  under  them, 
stay  the  proceedings,  and  otherwise  control  them,  when- 


(1)  Helneman  v.  Schloss,  83  Mich.  153. 

(2)  Freeland  v.  Williams,  131  U.  S.  405. 


386     ATTACHMENT,  GARNISHMENT,  EXECUTION 

ever  such  action  is  necessary  to  prevent  abuse,  oppression, 
or  injustice.  This  power  is  entirely  independent  of  stat- 
ute ;  it  exists  from  the  necessity  of  the  case.  Notice  to  the 
party  should  be  given,  but  is  not  jurisdictional.  The  de- 
termination may  be  made  summarily  without  the  inter- 
vention of  a  jury.  Probably  the  powers  of  the  judge  dur- 
ing vacation  are  more  restricted;  but  he  certainly  could 
stay  all  further  action  till  the  matter  could  be  determined 
in  open  court,  and,  for  this  purpose,  may  act  of  his  own 
motion  without  giving  any  notice  to  the  parties  (3). 

Section  2    Eights  and  Liabilities  of  Officer. 

§  62.  Right  to  protection  in  general.  An  officer  has 
three  means  of  protecting  himself  from  liability  for  acts 
done  in  obeying  the  commands  contained  in  the  process 
he  is  called  upon  to  execute:  (1)  the  shield  of  the  process; 
(2)  recourse  to  the  party  whose  process  he  serves;  (3) 
the  fact  that  his  possession  is  the  court's  possession.  Of 
these  in  the  order  named. 

§  63.  Shield  of  the  process.  The  officer  is  protected  by 
process  not  absolutely  void,  whether  regular  or  irregu- 
lar; and  he  cannot  take  advantage  of  irregularities, 
though  appearing  on  its  face,  to  excuse  his  failure  to  obey 
it  (4).  Void  process,  never  as  a  sword  but  always  as  a 
shield,  protects  the  officer  in  executing  it  if  it  is  fair  on  its 
face,  unless  he  knows  that  it  is  void.  "Whether  the  court  is- 
suing it  be  of  general  or  limited  jurisdiction,  he  is  not 
bound  to  look  behind  his  writ  (5).    Indeed,  there  is  con- 


(3)  Commonwealth  v.  Magee,  8  Pa.  St.  240. 

(4)  People  V.  Dunning,  1  Wend.  (N.  Y.)  16. 
(fj)     Kenlston  v.  Little,  30  N.  H.  318. 


ATTACHMENT,  GAENISHMENT,  EXECUTION     387 

siderable  respectable  authority  and  excellent  reason  for 
saying  that  he  should  not  attempt  to  decide  the  truth  of 
statements  made  to  him  concerning  it,  but  may  and 
should  leave  those  matters  to  be  determined  by  the  court 
(6).  Yet  he  is  not  bound  to  execute  any  void  process; 
and,  if  it  is  void  on  its  face,  he  will  not  be  protected  in 
doing  so.  The  court  above  may  not  agree  with  the  court 
below  as  to  its  jurisdiction  in  the  premises ;  but  if  the  ma- 
terial facts  appear,  or  are  suggested,  on  the  face  of  the 
process,  the  officer  is  bound  at  his  peril,  not  merely  to  de- 
cide correctly  all  the  questions  of  law  presented,  but  to 
do  what  is  impossible  for  other  mortals— correctly  fore- 
cast what  will  be  the  decision  of  the  court  of  last  resort 
upon  them.  If  he  refuses  to  proceed  and  the  court  finally 
holds  the  process  vaild  he  is  liable  to  the  plaintiff.  If  he 
acts  as  commanded  by  the  process,  and  the  court  finally 
holds  it  void,  even  on  the  ground  that  the  law  under  which 
it  issued  is  unconstitutional,  he  is  liable  to  the  defendant. 
See  Torts,  §  98,  Volume  II  of  this  work.  It  has  been 
said  that  in  this  particular  the  law  says  to  the  officer: 
**You  are  condemned  if  you  do,  and  you  are  damned  if 
you  don't.**  His  only  safeguard  is  to  demand  indemnity 
in  advance.  If  the  process  is  fair  on  its  face,  and  com- 
mands the  officer  to  take  any  specific  thing,  he  is  pro- 
tected in  doing  it,  no  matter  who  owns  it  (7).  But  he  is 
not  justified  in  taking  the  property  of  one  person,  on  a 
writ  commanding  him  to  take  the  property  of  another; 
nor  in  taking  exempt  property  on  a  writ  commanding 


(6)  Abercrombie  v.  Chandler,  9  Ala.  625. 

(7)  Buck  V.  Colbath,  3  Wall.  334. 


388     ATTACHMENT,  GARNISHMENT,  EXECUTION 

iiim  to  take  what  is  not  exempt  (8).  These  matters  he 
must  decide.  If  the  process  protects  him  at  all,  it  shields 
him  from  liability  for  taking  the  person  or  property  as 
commanded,  and  for  breaking  doors  and  going  upon  the 
property  of  the  defendant  or  others  when  necessary  to 
execute  the  command  of  the  writ,  except  that  he  cannot 
break  the  outer  door  of  the  defendant's  dwelling  (9). 

§  64.  Recourse  to  party  whose  writ  is  served.  The 
officer  may  protect  himself  against  loss  of  his  fees,  by  in- 
sisting on  receiving  his  pay  in  advance;  but  accepting 
the  process  without  claiming  the  right  waives  it.  Against 
liability  for  acting  under  a  writ  which  may  turn  out  to  be 
void,  or  for  taking  property  which  may  not  be  subject  to 
the  process,  he  may  protect  himself  by  refusing  to  act  till 
a  bond  of  indemnity  is  given  him ;  and,  even  after  a  levy 
without  indemnity,  if  the  creditor  refuses  or  neglects  on 
demand  to  indemnify  him  against  new  claimants,  he  is 
justified  in  yielding  to  them,  or  to  a  junior  creditor  who 
does  indemnify  (10).  But  failure  to  execute  cannot  be 
defended  on  the  ground  that  indemnity  was  not  given, 
if  none  was  demanded,  nor  because  the  indemnity  given 
was  worthless,  if  he  accepted  it  as  sufficient.  Without 
any  indemnity  being  given  or  promised,  the  officer  has 
recourse  to  the  creditor  for  reimbursement  for  all  loss 
suffered  by  him  by  reason  of  taking  property  which  the 
creditor  expressly  directed  him  to  take,  unless  the  officer 
was  certain  that  the  property  was  not  liable  to  the 
process ;  in  which  case  even  an  express  promise  to  indem- 


(S)     Lanimon  v.  Feusier,  111  U.  S.  17. 

(9)  Burtou  V.  Wilkinson,  18  Vt.  186;  Bailey  v.  Wright,  39  Micli.  96. 

(10)  Smitli  V.  Osgood,  46  N.  H.  178. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     389 

nify  would  be  void.  A  general  direction  to  execute  the 
process  does  not  make  the  creditor  liable  for  the  trepasses 
of  the  oflScer  in  executing  it,  nor  to  indemnify  the  officer 
against  liability  therefor  (11).  Contracts  to  indemnify 
from  liability  for  disobeying  process  are  usually  held  to  be 
void.  But  an  action  on  such  a  bond  was  sustained  in  a 
recent  case,  in  which  attorneys  advised  the  sheriff  that 
the  process  was  void,  and  the  defendant  induced  him  to 
accept  the  bond  and  wait,  so  that  the  validity  of  the  proc- 
ess could  be  tried  (12). 

§  65.  Officer's  possession  is  the  court's.  Whatever  pro- 
tection the  officer  receives  from  this  fact  is  merely  inci- 
dental to  the  protection  of  the  court's  jurisdiction.  Prop- 
erty seized  under  process  thereby  passes  into  the  custody 
of  the  court  issuing  the  process,  and  can  be  taken  from 
the  officer  only  on  another  process  conunanding  it  and  is- 
suing from  the  same  court.  Though  the  owner  is  a 
stranger  to  the  process,  he  cannot  recover  it  in  any  other 
way.  Nevertheless,  this  fact  does  not  prevent  him  from 
recovering  the  value  of  the  property  in  an  action  against 
the  officer  in  any  court  otherwise  competent  to  entertain 
the  suit  (13). 

§  66.  Property  rights  of  officer.  Unless  some  statute 
otherwise  provides,  delivery  of  process  to  an  officer  to 
be  executed  does  not,  before  levy,  yest  in  him  any  title  to 
or  interest  in  any  property  which  the  process  enables  or 
directs  him  to  take.  His  right  and  intention  to  levy  upon 
it  give  him  no  right  of  action  against  anyone  who  injures, 


(11)  Nelson  v.  Cook,  17  111.  443. 

(12)  Ray  v.  McDevitt,  126  Mich.  417. 

(13)  Lammon  v.  Feusier,  111  U.  S.  17. 


390     ATTACHMENT,  GAENISHMENT,  EXECUTION 

destroys,  or  carries  it  away,  even  if  done  for  the  purpose 
of  preventing  a  levy.  The  extent  of  his  right  is  to  seize 
it  if  he  can  get  to  it  (14).  But  a  levy  gives  him  such  a 
special  interest  in  the  chattels  taken  as  to  enable  him  to 
retake  them  in  another  state  (15) ;  or  he  may  maintain 
replevin,  case,  trover,  or  trespass,  as  the  facts  and  his 
interests  may  require,  in  his  own  name  without  adding 
his  office,  against  his  keeper  if  he  fails  to  produce  th^m 
on  demand,  against  anyone  who  injures  or  takes  them 
from  him  or  his  keeper,  though  he  be  a  constable,  and  the 
taker  a  sheriff  acting  under  a  valid  process  (16).  If  the 
officer  making  the  levy  was  a  deputy  he  may  sue  in  his 
own  name,  and  the  sheriff  may  also  sue.  Since  the 
garnishee  becomes  a  quasi-officer  by  virtue  of  the  garnish- 
ment, he  has  similar  rights  against  anyone  who  inter- 
feres with  his  possession  or  injures  the  property  (17). 
A  process  fair  on  its  face  is  not  sufficient  to  sustain  an 
action.  The  plaintiff  must  show  a  valid  process  and 
levy  (18). 

§  67.  Liability  of  officer  in  general.  The  officer  is  liable 
for  his  own  wrongs,  and  for  those  of  his  deputies  acting 
within  the  scope  of  their  authority  or  in  color  of  it.  He 
is  not  liable  for  failure  of  himself  or  his  deputy  to  do 
that  which  he  could  not  have  done  by  the  exercise  of  due 
care  and  diligence,  or  which  the  law  did  not  authorize 
him  to  do,  or  left  in  his  discretion  to  do  or  not.    But  for 


(14)  Mulheisen  v.  Lane,  82  111.  117. 

(15)  Utley  V.  Smith,  7  Vt.  154. 

(16)  Brewster  v.  Vale,  20  N.  J.  L.  56;  Phelps  v.  Gilchrist,  30  N.  H. 
171 ;  Maguire  v.  Bolen,  94  Wis.  48. 

(17)  Erskine  v.  Staley,  38  Va.  406. 

(18)  Hammer  v.  Ballantyne,  13  Utah,  324. 


ATTACHMENT,  GAENISHMENT,  EXECUTION     391 

malfeasance  and  misfeasance  he  is  not  excused  by  the 
fact  that  he  acted  in  good  faith,  was  only  a  de  facto  offi- 
cer or  was  liable  to  a  statutory  penalty  for  the  same  act. 
For  the  wrong  of  the  officer  or  his  deputy,  the  person  in- 
jured may  sue  the  officer  on  his  official  bond,  may  sue  him 
alone,  or,  for  the  deputy's  misfeasance  or  malfeasance, 
may  sue  him  alone;  but  for  nonfeasance  the  deputy  is 
liable  only  to  his  superior.  The  officer  who  commences 
executing  a  process  must  finish  it,  though  his  term  of 
office  expire  in  the  meantime ;  therefore,  if  an  officer  is  re- 
elected, and  during  his  second  term  becomes  liable  for 
the  act  or  default  of  himself  or  deputy  under  a  process 
received  and  partly  executed  during  his  first  term,  his 
bond  for  his  first  term  is  liable,  and  his  bond  for  his  sec- 
ond term  is  not  (19).  Only  a  person  showing  a  direct 
duty  to  himself  violated  and  a  special  injury  proximately 
resulting  therefrom  can  recover,  and  then  only  to  the 
amount  of  the  injury  suffered. 

The  persons  to  whom  liability  may  thus  be  incurred 
are:  (1)  the  plaintiffs  in  the  process;  (2)  the  defendants 
in  the  process;  (3)  strangers  to  the  process.  Of  these 
in  the  order  named. 

§68.  Liability  to  plaintiff  in  process:  Instances. 
1.  If  process  not  absolutely  void  is  presented  to  the 
officer  to  be  executed,  and  he  refuses  or  neglects  to  exe- 
cute it  during  the  time  allowed  by  law  therefor,  the  plain- 
tiff may  recover  against  him  unless  he  shows  a  legal  ex- 
cuse for  his  default.  2.  So,  if  he  disobeys  any  legal  in- 
structions of  the  plaintiff  in  executing,  whereby  he  fails 


(19)     Colyer  v.  Hlgglns,  62  Ky.  6. 


392     ATTACHMENT,  GARNISHMENT,  EXECUTION 

to  take  the  property,  incurs  expense,  fails  to  realize  as 
much  at  the  sale  as  otherwise  might  have  been  obtained, 
etc.  (20).  3.  So,  if  he  is  not  reasonably  diligent  in 
searching  for  property,  or  in  levying  upon  it,  by  reason 
of  which  the  process  cannot  be  so  effectively  executed; 
for  example,  if  the  defendant  has  died  in  the  meantime, 
sold  the  property,  encumbered  it,  or  suffered  a  levy  by 
another  (21).  4.  So,  if  he  does  not  take  enough,  when 
enough  could  have  been  found  by  the  exercise  of  reason- 
able diligence.  5.  So,  if  he  allows  the  defendant  to  es- 
cape after  arrest  on  a  capias,  unless  caused  by  the  act  of 
God  or  the  public  enemy.   6.    So,  if  he  suffers  a  loss  of  or 

m 

injury  to  the  property  attached  which  reasonable  dili- 
gence could  have  prevented ;  and,  in  the  case  of  property 
taken  under  execution,  several  courts  have  held  that  he 
would  be  excused  by  nothing  short  of  the  act  of  God,  pub- 
lic enemy,  or  inevitable  accident  (22).  7.  So,  if  he  ac- 
cepts an  insufficient  delivery  bond  from  the  opposite 
party,  a  claimant  or  other  person,  where  the  statute  al- 
lows the  recovery  of  the  property  on  giving  bond.  8.  So, 
if  he  does  not  follow  the  law  as  to  the  manner  of  adver- 
tising and  selling,  or  does  not  use  due  diligence  to  realize 
the  best  price.  9.  So,  if  he  makes  a  false  return  (23). 
10.  So,  if  he  does  not  make  return  by  the  return  day, 
though  not  specially  ruled  to  do  so  (24).  These  are  the 
cases  in  which  liability  is  most  frequently  incurred;  but 
he  may  become  liable  in  other  cases. 


(20)  Morgan  v.  People,  59  111.  58. 

(21)  Knox  V.  Webster,  18  Wis.  40G. 

(22)  Hartleib  v.  McLane,  44  Ta.  St.  510. 

(23)  Acton  V.  Knowles,  14  Ohio  St.  18. 

(24)  Burk  V.  Campbell,  15  Johns.   (N.  Y.)  456. 


.     ATTACHMENT,  GARNISHMENT,  EXECUTION     393 

§69.  Same:  Measure  of  liability.  Defenses.  The 
measure  of  the  officer's  liability  in  any  of  these  cases  is 
the  amount  that  could  have  been  realized  by  proper  care 
and  diligence,  and  it  is  no  defense  that  any  part  or  the 
whole  can  still  be  realized  (25).  The  burden  is  on  the  offi- 
cer to  show  that  part  or  all  and  how  much  could  not  have 
been  recovered.  It  is  presumed  that  all  might  have  been 
recovered.  It  is  a  good  defense  that  the  property  pointed 
out  was  exempt  or  belonged  to  another.  It  is  no  defense 
that  all  the  property  pointed  out  by  the  plaintiff  was  levied 
on  under  his  process,  and  that  the  remainder  could  not  be 
found  by  the  sheriff  till  pointed  out  by  the  junior  creditor 
on  whose  writ  it  was  sold  (26).  It  is  no  defense  that  the 
deputy  disobeyed  the  terms  of  his  commission  or  the  of- 
ficer's orders.  It  is  no  defense  that  the  officer  omitted  the 
levy  or  released  the  property,  in  deference  to  a  senior 
process  in  the  hands  of  another  officer  (27). 

§70.  Liability  to  defendants  in  process.  An  officer 
holding  and  executing  valid  process  will  become  liable 
to  an  action  by  the  defendants  therein:  (1)  if  the  officer 
arrests  or  seizes  beyond  his  territory;  (2)  on  Sunday, 
after  the  return  day,  or,  (3)  contrary  to  the  exemption 
laws;  (4)  if  he  breaks  the  outer  door  of  the  defendant's 
dwelling,  or  injures  any  other  property  by  breaking  into 
anything  without  demanding  admission  (28) ;  (5)  if  he 
takes  property  from  the  defendant's  person,  for  exam- 
ple, a  watch  or  money  in  his  pockets,  or  a  pin  on  his  tie, 


(25)  Ledyard  v.  Jones,  7  N.  Y.  550. 

(26)  Knox  V.  Webster,  IS  Wis.  406. 

(27)  Payne  v.  Drewe,  4  East,  523. 

(28)  Burton  v.  Wilkinson,  18  Vt.  186. 


394     ATTACHMENT,  GAENISHMENT,  EXECUTION 

but  not,  it  was  held,  for  taking  it  out  of  liis  hand;  (6)  if 
he  perpetrates  a  fraud  to  accomplish  a  levy,  as  by  decoy- 
ing the  defendant  into  his  territory,  or  arresting  him  on 
criminal  process,  or  asking  to  see  the  watch  in  defend- 
ant's pocket  and  taking  it  when  shown  (29) ;  (7)  if  he 
levies  on  other  property  after  he  has  taken  enough  to 
satisfy  the  process  beyond  all  question,  or  arrests  with- 
out searching  for  goods  when  there  is  plenty  of  property 
to  satisfy  his  writ,  or  takes  realty  when  there  is  plenty 
of  personalty  which  he  should  first  take,  or  takes  and  sac- 
rifices very  valuable  property  when  enough  other  was  of- 
fered that  he  could  have  sold  without  such  sacrifice;  (8) 
if  he  works  or  uses  the  property  taken,  or  allows  it  to  be 
lost  or  injured  for  want  of  due  care;  (9)  or  puts  any  un- 
necessary hardship  on  the  defendant,  by  maltreating  him 
while  under  arrest,  or  purposely  making  the  levy  in  a 
violent,  insulting,  or  oppressive  way,  for  example,  at 
night,  or  at  the  defendant's  store  during  business  hours 
with  vexatious  leisure  so  as  to  injure  his  business;  (10) 
if  he  delivers  up  the  property  to  a  claimant  or  other  per- 
son without  taking  a  sufficient  security;  (11)  if  he  pro- 
ceeds after  receiving  official  notice  or  notice  from  the 
plaintiff  that  the  process  has  been  paid,  stayed,  super- 
seded, or  enjoined,  but  a  mere  statement  by  the  defendant 
that  he  has  paid  is  not  enough;  (12)  if  he  does  not  follow 
the  law  as  to  advertising  and  selling,  or  unnecessarily 
sacrifices  the  property  at  the  sale,  or  continues  selling 
after  enough  has  been  realized;  (13)  if  he  buys  directly 
or  indirectly  at  the  sale,  was  interested  in  or  a  party  to 


(29)     Holker  v.  Hennessy,  141  Mo.  527. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     395 

the  process,  or  was  otherwise  disqualified  from  acting 
(30) ;  (14)  if  he  fails  to  account  for  the  surplus  in  any 
case,  and  for  all  if  the  writ  is  set  aside  while  he  holds  the 
property  or  proceeds;  or,  (15)  if  he  had  no  process  or  it 
was  void.  There  are  many  other  cases  in  which  the  of- 
ficer would  become  liable  to  the  defendant  in  the  process ; 
but  those  above  mentioned  occur  most  frequently. 

§71.  Liability  to  strangers  to  process.  The  officer  may 
become  liable  to  strangers  to  the  process  by  any  unnec- 
essary interference  with  their  persons  or  property  (31). 
While  the  officer  may  enter  the  premises  of  strangers,  or 
even  break  into  their  dwellings,  after  demanding  admis- 
sion, to  take  the  person  or  property  of  the  defendant 
therein;  he  is  liable  to  them  if  he  attempts  to  store  prop- 
erty on  their  premises,  or  stays  longer  than  is  necessary 
to  get  it  away. 

Section  3.    Place,  Time,  and  Agents  foe  Executing 

Process. 

§  72.  Where  process  may  be  executed.  Execution  of 
process,  beyond  the  limits  of  the  territory  to  which  the 
jurisdiction  of  the  court  or  the  officer's  jurisdiction  to  act 
extends,  amounts  to  nothing,  though  the  process  be  ad- 
dressed to  that  territory.  Where  the  statutes  provide 
that  a  court  of  one  county  may  issue  its  process  to  and 
have  it  executed  in  another  county,  upon  certain  things 
being  done,  there  is  considerable  dispute  as  to  whether 
process  issued  and  executed  in  the  other  county  can  be 

(30)  McMillan  v.  Rowe,  15  Neb.  520. 

(31)  Lammon  v.  Feusier,  111  U.  S.  17. 


396     ATTACHMENT,  GAENISHMENT,  EXECUTION 

avoided  collaterally,  or  only  upon  direct  attack  for  fail- 
ure to  comply  with  the  statute  (32), 

§  73.  How  early.  If  the  officer  presumes  to  execute  the 
process  before  he  receives  it  he  is  a  mere  trespasser. 
That  he  acted  because  he  knew  it  had  been  made  out  and 
mailed  to  him,  and  that  he  afterwards  received  it  and  re- 
turned his  action  upon  it,  will  not  make  the  act  valid  nor 
excuse  his  trespass  (33).  But  the  moment  he  receives 
it  with  orders  from  the  creditor  to  proceed  he  may  exe- 
cute it.  The  debtor  can  demand  no  indulgence  of  him. 
The  attachment  or  garnishment  writ  may  be  executed 
before  the  summons  to  the  defendant  is  served  or  issued 
(34). 

§  74.  How  late.  The  diligence  with  which  the  officer 
must  proceed  to  avoid  liability  has  already  been  consid- 
ered (§  68,  above).  The  only  remaining  question  under 
this  head  is  the  validity  of  delayed  action.  The  attach- 
ment and  garnishment  statutes  often  require  the  defend- 
ant and  garnishee  to  be  served  a  certain  number  of  days 
before  the  time  for  appearance  mentioned  in  the  process. 
In  such  cases,  service  less  than  that  many  days  before  the 
appointed  time  will  usually  be  held  bad  on  direct  attack, 
and  has  been  held  void  on  collateral  attack  (35).  When 
the  writ  expires,  the  officer's  authority,  except  to  complete 
acts  begun,  expires  with  it.  A  voluntary  payment  of 
money  received  by  the  officer  from  the  debtor  after  the 
return  day,  if  no  levy  has  been  made,  is  not  held  by  him 


(32)  Kontzler  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  47  Wis.  G41. 

(33)  Wales  v.  Clark,  43  Conn.  183. 

(34)  Hargan  v.  Burch,  8  Iowa,  309. 

(35)  Southern  Bank  v.  McDonald,  4(5  Mo.  31. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     397 

in  Lis  official  capacity.  The  creditor  cannot  compel  him 
to  account  by  summary  process  of  attachment,  nor  by 
proceeding  upon  his  bond,  but  only  by  assumpsit  or  simi- 
lar action.  A  levy  after  the  return  day  is  generally  held 
to  be  absolutely  void,  though  another  levy  had  been  made 
in  season  under  the  same  process.  The  officer  is  a  tres- 
passer, and  the  purchaser  gets  no  title  (36).  A  levy  after 
the  officer  has  indorsed  his  return  and  filed  the  process 
is  void,  though  the  return  day  has  not  yet  arrived.  But 
a  mere  indorsement  of  the  return  on  the  process  does  not 
prevent  a  subsequent  levy  before  the  return  day,  and  a 
levy  on  the  return  day  is  good  (37).  If  a  levy  is  made  in 
time,  the  further  proceedings  (advertising,  selling,  dis- 
posing of  the  proceeds,  and  making  return)  may  be  had 
after  the  return  day  and  after  the  writ  has  been  returned, 
though  no  new  authority  has  been  issued,  and  the  officer's 
term  has  meanwhile  expired  (note  37,  above). 

§  75.  Who  may  execute  process.  Process  can  be  exe- 
cuted only  by  an  officer  duly  authorized  to  execute  such 
processes  generally,  or  especially  deputized  to  serve  that 
particular  process.  Execution  of  a  process  by  an  un- 
authorized individual  is  void,  and  the  possession  of  the 
process  is  no  protection  to  him.  Execution  of  process 
by  a  de  facto  officer  is  not  void  as  to  innocent  parties,  but 
the  officer  himself  is  not  protected  by  the  writ  (38).  Proc- 
ess can  be  executed  only  by  an  officer  who  has  it  in  his 
possession,  and  is  acting  within  the  territory  of  his  juris- 


(36)  Commonwealth  v.  Magee,  8  Pa.  St.  240. 

(37)  Eviius  V.  Barnes,  32  Tenn.  (2  Swan.)  291. 

(38)  Green  v.  Burke,  23  Wend.  (N.  Y.)  490. 


398     ATTACHMENT,  GARNISHMENT,  EXECUTION 

diction  (39).  Execution  of  process  by  an  officer  inter- 
ested in  it  or  party  to  it,  or  by  one  officer  to  whom  it  might 
be  directed  when  it  is  directed  to  another  (40),  has  been 
held  absolutely  void  on  collateral  attack;  but  it  seems 
that  these  matters  should  only  be  held  to  make  the  act 
voidable  at  most,  and  such  is  the  opinion  of  several 
courts  and  text- writers  of  recognized  ability  (41).  While 
property  is  held  by  an  officer  under  one  process,  no  other 
officer  can  take  it.  An  officer  who  has  levied  upon  prop- 
erty under  one  process  may  make  a  second  levy  under 
another  process  issuing  from  the  same  court  (42),  by  sim- 
ply indorsing  it  on  the  writ,  though  the  actual  possession 
is  held  by  his  receiptor.  Yet  even  he  cannot  take  it  under 
process  from  any  other  court,  without  statute  expressly 
authorizing  such  action;  for  he  is  merely  the  court's 
servant,  and  he  cannot  serve  two  masters  whose  orders 
may  be  inconsistent. 


(39)  Wales  v.  Clark,  43  Conn.  183. 

(40)  Gordon  v.  Camp,  3  Pa.  St.  349. 

(41)  Terrill  v.  Auchauer,  14  Ohio  St.  80;  Freeman  on  Executions 
§  40;  Alderson  on  Judicial  Writs  §§  25,  98. 

(42)  Hewe  V.  Moody,  67  Tex.  615. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     399 


CHAPTER  IV. 
PROPERTY  TAKEN,  LEVY,  AND  SERVICE. 

§  76.  Comparative  scope  of  processes.  Garnishment  is 
not  an  appropriate  process  to  arrest  the  person ;  nor  is  a 
fieri  facias,  to  take  intangible  things.  Most,  if  not  all, 
writs  are  similarly  limited  as  to  their  scope;  but  the 
great  body  of  rules  in  this  connection  apply  alike  to  all 
processes.  Wherever  capias  lies  in  attachment  it  lies  in 
execution.  Whatever  property  may  be  taken  in  execu- 
tion may  be  attached  (1).  Whatever  cannot  be  taken  un- 
der execution  cannot  be  attached.  In  scope,  garnishment 
differs  from  these  principally  in  the  fact  above  men- 
tioned, and  the  further  fact  that  it  is  peculiarly  adapted 
to  impounding  obligations  to  pay.  Moreover,  it  is  not 
usually  desirable  nor  available  against  real  property; 
but  in  a  few  states  the  garnishee  may  be  charged  for  land 
in  his  possession  (2).  Otherwise,  almost  any  property 
liable  to  attachment  or  execution  is  liable  to  garnishment. 

Section  1.     Matters  Peculiar  to  Garnishment. 

§  77.  Two  grounds  of  liability.  The  statutes  contem- 
plate two  distinct  classes  of  cases  in  which  the  garnishee 
may  be  charged:  (1)  when  he  has  specific  property  in  his 

(1)  Handy  v.  Dobbin,  12  Johns.  220. 

(2)  Webber  v.  Hayes,  117  Mich.  256. 


400     ATTACHMENT,  GARNISHMENT,  EXECUTION 

possession  belonging  to  the  debtor,  that  is,  when  he  is  a 
bailee;  (2)  when  he  is  indebted  to  the  defendant  (3).  Of 
these  in  their  order;  but  first,  as  to  when  the  liability 
begins. 

§  78.  Prom  what  time  reckoned.  The  liability  of  the 
garnishee,  whether  as  debtor  or  as  bailee,  depends  upon 
the  situation  at  the  time  fixed  upon  by  the  statute,  which 
is  usually  the  moment  when  the  process  is  served  on  him. 
A  very  few  statutes  make  it  date  from  the  time  the  officer 
receives  the  writ,  and  others  allow  his  liability  to  be  in- 
creased by  anything  occurring  before  he  answers.  The 
rule  usually  applicable  is  that  no  event  subsequent  to  the 
date  fixed  upon  can  discharge  him,  if  he  was  liable  then ; 
make  him  liable,  if  he  was  not  liable  then;  nor  increase 
or  diminish  the  amount  of  his  liability  (4). 

§  79.  Garnishee  as  bailee.  The  garnishee  can  be 
charged  as  bailee  only  for  property  liable  to  sale  under 
execution,  for  when  charged  as  such  he  discharges  him- 
self by  delivering  up  the  specific  thing  to  the  ofiicer  to  be 
sold.  It  would  be  useless  to  charge  a  garnishee,  if  the 
thing  could  not  be  made  available  when  surrendered. 
But,  on  the  other  hand,  if  the  property  is  such  that  it 
could  be  sold  under  execution,  that  fact  is  pretty  good 
evidence  that  the  garnishee  can  be  charged  for  it,  unless 
it  can  be  sold  under  execution  only  by  virtue  of  some 
statute  prescribing  a  specific  procedure,  in  which  case 
that  procedure  only  can  be  followed.  And  a  few  statutes 
authorize  garnishment  only  for  property  which  cannot 


(3)  Allen  v.  Hall,  5  Mete.  263. 

(4)  Foster  v.  Singer,  09  Wis.  392;  Webber  v.  Bolte,  51  Mich.  113. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     401 

be  levied  on  (5).  The  property  for  which  the  garnishee 
can  be  charged  as  bailee  will  be  considered  when  we  come 
to  discuss  the  matters  applicable  to  all  processes  (§§81, 
90  below).  All  that  need  be  added  under  the  present 
head  is  that  the  garnishee  can  be  charged  as  bailee  only 
for  property  actually  within  the  control  of  himself  or  his 
bailee,  independent  of  the  control  of  the  defendant  (6). 

§  80.  Garnishee  as  debtor.  The  fact  that  a  debt  pres- 
ently owing  is  not  payable  till  a  future  day,  or  till  after 
demand,  or  is  secured  by  mortgage  or  otherwise,  or  could 
be  sued  for  only  by  the  defendant  and  others  jointly,  is 
generally  no  defense  to  the  garnishment  (7).  The  gar- 
nishee can  be  charged  as  debtor  only  when  he  is  proceeded 
against  as  debtor,  and  only  on  an  unconditional  liqui- 
dated obligation  on  contract  or  judgment,  payable  in 
money,  not  exempt  under  the  statute  from  liability  for 
debt,  nor  evidenced  by  any  outstanding  negotiable  instru- 
ment, nor  in  suit  or  judgment  in  any  other  court  (8).  As 
a  general  rule,  any  defense  which  the  garnishee  could  set 
up  in  a  suit  against  him  by  his  creditor  is  equally  avail- 
able when  his  creditor's  creditor  seeks  to  charge  him  on 
the  debt,  and  no  other  defenses  are  available  (9). 

Section  2.    Property  Subject  to  Process. 
§  81.    General  rule.    The  policy  of  the  law  is  to  make 
the  judgments  of  the  courts  effective,  and  for  this  pur- 


(5)  Brown  v.  Davis,  18  Vt  211. 

(6)  First  Nat.  Bank  v.  Davenport  &c.  Ry.  Co.,  45  Iowa,  120. 

(7)  Moore  v.  Gilmore,  58  N.  II.  529. 

(8)  Lehmann  v.  Farwell,  95  Wis.  185;  Jones  v.  Crews,  64  Ala.  3G3 ; 
Rejmolds  v.  Haines,  83  Iowa,  342;  Thompson  v.  Gainesville  Nat.  Bank, 
66  Tex.  156 ;  Scott  v.  Roliman,  43  Neb.  618. 

(9)  Allen  v.  Hall,  5  Mete.  263. 


402     ATTACHMENT,  GARNISHMENT,  EXECUTION 

pose  the  processes  now  being  discussed  have  been  pro- 
vided. In  keeping  with  this  policy,  we  should  expect  to 
find  the  courts  willing  that  these  processes  should  be  used 
in  any  way  that  bids  fair  to  accomplish  that  purpose, 
without  producing  a  greater  evil  than  that  for  which  the 
judgment  was  given.  And  such  is  the  law.  The  use  of  a 
capias  to  make  judgments  effective  has  been  restricted 
by  statute,  because  the  public  has  become  convinced  that 
its  unrestricted  use  is  more  productive  of  evil  than  of 
good.  If  it  be  alleged  that  any  property  is  not  liable  to 
executions,  attachments,  and  garnishments,  a  good  rea- 
son should  be  given  to  support  the  assertion.  Therefore, 
in  the  discussion  of  this  subject,  we  shall  start  with  the 
general  rule  that  all  property  is  liable  to  the  processes, 
and  shall  limit  the  statment  by  such  exceptions  as  we  find 
supported  by  sufficient  reasons.  The  principal  of  these 
reasons  are:  (1)  that  the  judgment  or  process  is  limited 
so  as  not  to  extend  to  the  things  proposed  to  be  taken; 
(2)  that  they  are  not  property;  (3)  that  the  defendant 
has  not  a  sufficient  estate  in  them;  (4)  that  they  are  ex- 
empt.   Of  these  in  their  order. 

§  82.  Judgment  or  process  limited.  All  judgments  and 
processes  are  limited  as  to  persons,  place,  and  property. 
As  to  persons,  they  are  limited  to  the  person  against 
whom  the  judgment  is  rendered  or  the  process  issued. 
The  property  of  strangers  cannot  be  taken,  though  they 
be  equally  liable  with  the  defendant  for  the  payment  of 
the  demand  sued  on.  As  to  place,  they  are  limited  to  the 
property  within  the  jurisdiction  (10).     In  attachment 


(10)     Lindley  v.  O'Reilly,  50  N.  J.  L.  636. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     403 

proceedings  without  personal  service  or  appearance,  the 
judgment  is  limited  to  the  property  attached ;  but  if  the 
defendant  has  appeared  generally,  the  execution  may  be 
both  general  and  special  (11).  When  the  judgment  is 
general,  the  property  of  the  defendant  within  the  juris- 
diction which  can  be  taken  is  limited  by  the  scope  of  the 
process,  as  above  indicated  (§76).  If  the  process  be 
against  several,  the  officer  may  take  their  joint  property, 
or,  at  his  option,  levy  the  full  amount  of  the  property  of 
any  one,  disregarding  the  debtors'  wishes  as  to  selection, 
unless  the  process  otherwise  directs,  or  some  statute  se- 
cures these  rights  to  defendants. 

§  83.    Things  not  property.    Many  things  contribute  to 
our  enjoyment  of  life  which  this  branch  of  the  law  does 
not  look  upon  in  the  light  of  property  at  all.    The  general 
rule  in  this  connection  is  that  nothing  can  be  taken  under 
process  as  property,  unless  the  thing  may  be  sold.    Thus, 
intoxicating   liquors   where   prohibited    (12),   burglars' 
tools,  dies  to  counterfeit  the  public  currency,  or  any  other 
thing,  the  sale,  manufacture,  and  possession  of  which  is 
unlawful,  are  not  property  nor  liable  to  seizure  to  satisfy 
debts.    Again,  the  right  to  sue  for  a  tort  is  not  property. 
It  cannot  be  sold  separate  from  the  thing  upon  which  the 
tort   was   committed,    and   the   wrong-doer   cannot   be 
charged  as  garnishee  by  reason  of  his  liability  for  it  (13). 
Again,  any  franchise  granted  by  the  public  to  an  individ- 
ual, or  license  granted  by  one  individual  or  corporation 
to  another,  as  a  seat  on  the  stock  exchange,  is  not  prop- 

(11)  Pennoyer  v.  Neflf,  95  U.  S.  714 ;  Conn  v.  Caldwell,  6  111.  531. 

(12)  Kifif  V,  Old  Colony,  &c.  Ry.  Co.,  117  Mass.  591. 

(13)  Lehmann  v.  Farwell,  95  Wis.  185k 


404     ATTACHMENT,  GARNISHMENT,  EXECUTION 

erty,  but  a  personal  privilege.  In  the  same  connection, 
may  be  mentioned  the  right  of  an  author  to  publish  his 
manuscript  or  to  withhold  it,  and  the  monopoly  of  au- 
thors and  inventors  secured  to  them  by  the  patent  and 
copyright  laws  (14).  All  of  these  have  been  held  not 
liable  to  any  legal  process  to  enforce  judgments;  some- 
times, on  the  ground  that  they  are  not  property,  and 
sometimes  on  other  grounds.  But,  in  most  of  these 
cases,  and  it  may  extend  to  all  yet,  the  courts  have  held 
that  the  advantages  of  these  privileges  may  be  made 
available  for  the  satisfaction  of  judgments,  by  invoking 
the  extraordinary  jurisdiction  of  the  equity  courts  (15). 
Again,  notes,  bonds,  judgment  records,  title-deeds,  and 
other  evidences  of  title  or  indebtedness  are  not  property 
in  such  a  sense  that  they  are  liable  to  seizure  and  sale  on 
any  process  to  enforce  judgments,  unless  there  be  a  stat- 
ute making  the  seizure  of  the  written  evidence  equivalent 
to  the  seizure  of  the  things  evidenced  (16).  Such  statutes 
in  regard  to  notes  and  bonds  are  not  uncommon. 

§  84.  Defendant's  estate  insufficient.  A  thing  which 
is  property  may  not  be  liable  to  the  process,  because  the 
defendant  has  not  a  sufficient  estate  in  it.  At  common 
law,  nothing  could  be  taken  in  which  the  defendant's  es- 
tate was  merely  equitable,  because  the  law  courts  did  not 
recognize  a  merely  equitable  title,  and  the  equity  courts 
enforced  their  decrees  by  coercion.  But  statutes  have 
been  passed  in  most  of  the  states  making  such  estates  li- 


(14)  Dart  v.  Woodhouse,  40  Mich.  399;  Stevens  v.  Gladding,  17  How. 
447. 

(15)  Aser  v.  Murray,  105  U.  S.  126. 
(10)  Freeman  on  Executions  §  112. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     405 

able ;  and  the  codes  which  have  abolished  the  distinctions 
between  law  and  equity  have  largely  contributed  to  the 
same  effect  (17).  Property  in  which  the  defendant  has  a 
vested  legal  estate  is  often  held  not  liable,  because  other 
persons  have  estates  in  the  same  property  which  might 
be  prejudiced  by  a  seizure  and  sale.  Under  this  head, 
may  be  mentioned  future  estates  in  chattels,  which  could 
be  seized  only  by  ousting  the  particular  tenant ;  property 
in  which  the  defendant  has  only  an  undivided  interest  as 
joint  tenant,  tenant  in  common,  or  partner ;  and  cases  in 
which  his  estate  is  subject  to  a  mortgage,  pledge,  or  lien 
to  another.  But  in  most  states,  if  not  in  all,  each  of  these 
estates  is  held  liable  to  some  of  the  processes  without 
statute,  or  is  made  so  liable  by  statute  (18).  "What  are 
called  future  contingent  estates  may  also  be  mentioned 
under  this  head.  They  are  not  estates  at  all,  but  only 
possibilities  of  future  acquisition,  and  for  that  reason 
are  not  liable  to  the  processes  (19).  The  sheriff  cannot 
levy  on  a  hope.  The  same  reason  exists,  and  the  rule 
equally  applies,  to  property  for  the  purchase  of  which  the 
defendant  is  negotiating,  but  title  to  which  he  has  not 
yet  acquired;  and  so,  as  to  money  sent  to  pay  a  debt 
owing  to  him,  but  not  yet  paid  over  (20).  When,  on  the 
other  hand,  a  creditor  of  the  seller  tries  to  get  it,  he  is  too 
late  if  the  title  has  passed  (21). 


(17)  Freeman  on  Executions  §  116. 

(18)  Moore  v.  Gilmore,  16  Wash.  123;  Smith  v.  Menominee  Circuit 
Judge,  53  Mich.  560. 

(19)  Ducker  v.  Burnham,  146  111.  9. 

(20)  Buchanan  v.  Alexander,  4  How.  20. 

(21)  Moore  v.  Davis,  57  Mich.  251. 


406     ATTACHMENT,  GAENISHMEXT,  EXECUTION 

§  85.  Things  exempt:  Grounds  enumerated.  A  thing 
within  the  scope  of  the  judgment  and  process,  which  is 
property,  and  in  which  the  defendant  has  a  sufficient  es- 
tate, may  be  exempt  on  any  of  several  grounds.  The 
principal  grounds  of  exemption  are  the  following:  (1) 
that  a  statute  makes  the  thing  exempt  for  the  use  of  the 
defendant  and  his  family,  so  that  they  may  be  self- 
supporting  and  honorable  members  of  society  rather 
than  burdens  upon  it;  (2)  that  the  seizure  and  sale  would 
practically  destroy  the  thing,  which  is  sometimes  called 
an  equitable  exemption;  (3)  that  the  personal  security 
of  every  individual  and  the  public  peace  would  be  en- 
dangered by  allowing  such  seizure;  (4)  that  the  thing  is 
serving  the  public  in  its  present  use,  and  that  service 
would  or  might  be  interrupted  by  a  seizure;  (5)  that  the 
thing  is  now  in  the  possession  of  some  other  state  agency, 
and  could  not  be  taken  by  this  court  or  officer  without  an 
unwarranted  violation  of  the  authority  and  interruption 
of  the  business  of  the  other.    Of  these  in  their  order. 

§  86.  Statutory  exemptions.  Statutes  exist  in  every 
state,  making  certain  property  exempt  from  all  processes 
to  enforce  judgments  and  decrees.  These  statutes  are 
not  uniform.  The  courts  construe  them  very  liberally  in 
favor  of  the  debtors ;  for  example,  they  are  usually  avail- 
able to  non-residents  unless  restricted  to  residents,  ex- 
tend to  the  proceeds  while  traceable  and  not  put  to  some 
other  use,  and  cannot  be  waived  in  advance  by  anything 
short  of  a  pledge  or  mortgage. 

§  87.  Equitable  exemptions.  Some  property  otherwise 
liable  is  exempt,  on  the  ground  that  extreme  hardship 


ATTACHMENT,  GARNISHMENT,  EXECUTION     407 

would  be  inflicted  on  the  defendant  by  the  seizure  and 
sale,  without  any  commensurate  gain  to  the  creditor.  For 
example,  title  deeds,  bonds,  and  manuscripts  are  not 
property  as  such,  but  merely  evidence  of  property;  yet 
the  material  used  to  make  the  record  has  some  value  aa 
waste  paper.  The  law  will  not  allow  them  to  be  sacrificed 
for  this  pittance  (§83,  above).  Again,  growing  crops 
would  often  be  worth  something  in  the  immature  state; 
but  the  law  will  not  permit  them  to  be  so  destroyed.  So, 
of  articles  in  course  of  manufacture  which  would  be  sub- 
stantially destroyed  by  interference  with  them;  for  ex- 
ample, hides  in  a  tan-vat,  dough  in  a  bake-oven,  and 
bricks,  charcoal,  and  potters'  wares,  being  fired.  So,  of 
property  so  perishable  that  it  would  spoil  before  it  could 
be  sold.  Yet  the  greater  part  of  these  difficulties  may  be 
avoided.  The  court  may  order  the  perishable  property 
sold  on  the  spot.  Statutes  usually  provide  that  filing  a 
notice  of  levy  on  growing  crops  shall  be  equivalent  to  an 
actual  seizure,  and  that  the  crops  may  be  left  to  stand 
till  they  mature.  The  sheriff  may  stand  by  till  the  proc- 
ess of  manufacture  is  complete  and  then  levy;  or,  though 
he  cannot  be  compelled  to  do  it,  he  may  levy  at  once  and 
complete  the  process  of  manufacture  himself,  if  he  is 
willing  to  assume  the  risk  of  failure,  in  which  case  he  is 
liable  only  for  want  of  ordinary  care  (22). 

§  88.  Peace  and  security  exemptions.  Property  on  the 
defendant's  person  is  not  liable,  because  the  seizure  of  it 
is  necessarily  such  an  indignity  to  the  wearer  that  a 
breach  of  the  peace  would  be  almost  certain  to  follow. 


(22)     Cheshire  National  Bank  v.  Jewett,  119  Mass.  241. 

Vol.  X— 28 


408     ATTACHMENT,  GAENISHMENT,  EXECUTION 

Moreover,  the  right  to  make  such  seizures  would  destroy 
the  personal  security  of  everyone,  and  open  the  door  to 
numerous  abuses  (23).  The  same  reasons  are  at  the 
foundation  of  the  rule  that  the  officer  shall  not  break  into 
the  defendant's  dwelling  to  levy  on  his  property  (24). 

§  89.  Public  service  exemptions.  The  property  of  in- 
dividuals and  corporations  which  is  being  used  in  the 
public  service— the  cars  on  which  the  public  is  being  car- 
ried, the  water-works  by  which  it  is  being  supplied  with 
water,  even  the  coal  being  used  to  fire  the  engines  that 
draw  the  cars  or  pump  the  water,  or  any  other  property 
being  used  in  the  public  service— is  exempt  from  seizure 
under  any  process  as  long  as  the  service  continues  (25). 
The  same  reasons  conspire  with  others,  to  be  mentioned 
in  the  next  subsection,  to  prevent  the  property  of  public 
corporations  being  taken  (26) ;  and  it  has  even  been  held 
that  the  fees  of  public  officers  could  not  be  taken  by  garn- 
ishing the  individuals  owing  them,  because  the  appro- 
priation of  the  fees  to  the  payment  of  the  debt  might  pre- 
vent the  public  from  getting  the  service  (27).  Land  was 
not  liable  under  the  feudal  system;  and  the  reason  com- 
monly given  is  that  the  public  defense  and  revenues  de- 
pended on  the  tenure.  But  now  real  property  is  liable  by 
statute  in  every  state. 

§  90.  Jurisdictional  conflict  exemptions.  That  the 
public  business  may  be  carried  on  with  any  success  at  all, 


(23)  Holker  v.  Hennessey,  141  Mo.  527. 

(24)  Bailey  v.  Wright,  39  Mich.  96. 

(25)  Gardner  v.  Mobile  &  N.  Ry.  Co.,  102  Ala.  635. 

(26)  Klein  v.  New  Orleans,  09  U.  S,  149. 

(27)  Sexton  v.  Brown,  72  Minn.  371. 


ATTACHMENT,  GAENISHMEXT,  EXECUTION     409 

it  is  necessary  that  no  department  of  the  state  should  in- 
terfere with  the  affairs  of  any  other,  except  in  the  man- 
ner provided  hy  law.    Whenever  any  department  of  state 
takes  possession  of  anything  to  do  anything  with  it,  no 
other  department  has  any  right  to  interfere,  otherwise 
than  for  the  purpose  of  supervising  according  to  the  au- 
thority given  it.    This  fact  prevents  one  constable  from 
taking  property  out  of  the  hands  of  another,  even  on  a 
process  from  the  same  court  (28) ;  and,  with  greater  rea- 
son, prevents  any  officer  taking  property  from  an  officer 
of  another  court,  and  prevents  every  court  from  inter- 
fering with  or  attempting  to  command  any  person  in 
carrying  out  the  orders  of  any  other  court.    Judgment 
debtors  cannot  be  required  to  answer  as  garnishees  in  a 
court  other  than  the  one  that  rendered  the  judgment,  be- 
cause that  would  be  interfering  with  the  power  of  the 
court  to  enforce  its  judgment  (29).    Property  being  ad- 
ministered by  probate  courts  cannot  be  taken  from  their 
officers  on  processes  issued  from  other  courts;  nor  can 
these  officers  be  required  to  answer  as  garnishees  in  any 
other  court,  because  the  doing  of  either  of  these  things 
would  be  interupting  the  business  and  violating  the  jur- 
isdiction of  the  probate  court  (30).    Even  property  that 
has  been  released  on  bond  is  still  exempt  (31). 

Section  3.     Levy  and  Service. 
§  91.    In  general.     Having  ascertained  what  may  be 
taken,  we  must  next  consider  what  must  be  done  to  take 


(28)  Hewe  v.  Moody,  67  Tex.  615. 

(29)  Scott  V.  Rohman,  43  Neb.  618. 

(30)  Hudson  v.  Saginaw  Circuit  Judge,  114  Mich.  116. 

(31)  Hagan  v.  Lucas,  10  Peters,  -^0. 


410     ATTACHMENT,  GARNISHMENT,  EXECUTION 

it.  What  must  be  done  depends  upon  the  nature  of  the 
process  in  hand  and  the  statutes  affecting  it.  When  at- 
tachments issue  at  the  commencement  of  the  action,  the 
ojBScer  receives  a  process  consisting  of  two  parts ;  or  else 
the  parts  are  wholly  divided,  and  he  receives  two  proc- 
esses. In  either  case,  one  is  a  command  to  summon  the 
defendant ;  the  other,  to  attach  his  property.  Where  tlie 
attachment  issues  in  a  pending  action  no  new  summons 
is  necessary.  While  the  garnishment  process  does  not 
consist  of  these  two  distinct  parts,  it  equally  serves  a 
double  purpose— as  original  process  commencing  an  ac- 
tion against  the  garnishee,  and  as  a  command  to  him  to 
hold  the  defendant's  property.  An  execution  contains  no 
command  to  summon,  for  the  defendant  has  already  had 
his  day  in  court.  However,  many  statutes  require  that 
the  debtor  shall  be  notified  that  the  attachment  or  execu- 
tion has  been  issued  and  levied,  or  that  the  garnishment 
has  been  issued  and  served.  From  what  has  been  said 
it  will  be  seen  that  the  execution  of  the  processes  consists : 
(1)  of  levying  on  and  disposing  of  the  property  of  the  de- 
fendant according  to  law  and  the  command  of  the  proc- 
ess; (2)  of  serving  the  original  processes  to  commence 
the  actions  against  the  defendant  and  garnishee;  and  (3) 
of  serving  the  defendant  with  notice  of  the  execution,  at- 
tachment, or  garnishment,  and  of  what  has  been  done  un- 
der it,  where  such  notice  is  required  by  the  statute. 
These  three  will  now  be  considered  in  the  order  named ; 
but,  under  the  first,  only  the  essentials  to  perfect  the  levy 
will  be  considered,  the  further  proceedings  to  sale  being 
treated  subsequently  (§§  118-22). 


ATTACHMENT,  GARNISHMENT,  EXECUTION     411 

§  92.  Levy  on  land.  The  modem  statutes  do  not  re- 
quire any  actual  entry  to  effect  a  levy  on  land,  but  provide 
as  a  substitute  that  the  officer  shall  indorse  a  certificate 
of  levy  upon  his  process,  and  that  notice  of  this  shall  be 
filed  in  some  public  office.  Under  tbese  statutes  the  land 
must  be  described  with  the  same  certainty  that  is  neces- 
sary to  pass  title  by  deed,  and  is  not  bound  till  the  notice 
is  filed  as  required  (32). 

§93.  Levy  on  chattels:  Sufficiency.  An  actual  levy  is 
usually  required  in  the  case  of  chattels.  To  levy  is  to 
seize.  The  decisions  are  not  entirely  harmonious  as  to 
what  constitutes  a  sufficient  seizure;  and  probably  much 
depends  upon  the  manner  in  which  the  question  arises, 
and  the  nature  of  the  property  seized.  If  the  defendant 
has  submitted  to  the  levy,  it  is  immaterial,  so  far  as  he  is 
concerned,  whether  the  officer  ever  saw  or  possessed  the 
property  (33).  A  doubtful  act  and  declaration  of  levy  by 
the  officer  would  estop  him  in  an  action  by  the  defendant 
against  him  for  a  wrongful  levy,  though  insufficient  in  a 
contest  between  two  officers  as  to  which  had  made  the  first 
levy.  What  would  be  considered  no  seizure  of  a  buggy 
might  be  a  sufficient  levy  on  a  red-hot  casting  or  a  herd 
of  wild  horses  (34).    The  test  usually  applied  is  to  de^ 

(32)  McGregor  v.  Brown,  5  Pick.  170. 

(33)  Walker  v.  Shotwell,  21  Miss.  544. 

(34)  Portis  V.  Parker,  8  Tex.  23 ;  Long  v.  Hall,  97  N.  Car.  286.  A  levy 
on  corn  in  a  crib  by  nailing  it  up,  notifying  the  defendant  and  other  spec- 
tators of  the  levy,  and  so  leaving  it  without  a  guard,  was  sustained 
against  a  subsequent  purchaser  from  the  defendant.  Richardson  v.  Rar- 
din,  88  111.  124.  A  levy  on  hay  in  a  barn  by  posting  notice  thereof  on  the 
door  without  moving  the  hay  or  leaving  anyone  in  charge  was  sustained. 
Merrill  v.  Sawyer,  8  Pick.  397.  Contra :  Bryant  v.  Osgood,  52  N.  Hamp. 
182.  A  levy  on  grain  in  a  stack  by  going  to  It  and  forbidding  the  de- 
fendant to  touch  it  was  sustained.    Gallagher  v.  Bishop,  15  Wis.  276. 


412     ATTACHMENT,  GARNISHMENT,  EXECUTION 

termine  whether  the  officer  so  interfered  with  the  prop- 
erty that  he  would  be  liable  to  an  action  of  trespass  by 
the  defendant  but  for  the  protection  of  the  process ;  and 
in  this  respect  it  is  said  that  he  must  have  touched  the 
property  or  a  part  of  it,  or  must  have  declared  that  he 
was  levying  on  it,  while  he  was  so  situated  that  he  could 
see  it  and  might  have  touched  it  if  he  had  wished  to  do 
so  (35).  Therefore,  an  officer  who  goes  to  a  building  to 
levy  on  its  contents,  and,  being  unable  to  get  in,  pro- 
claims at  the  door  that  he  levies  on  all  the  property  in  the 
building,  has  made  no  levy,  though  he  guard  all  the  doors 
and  windows  so  that  no  one  could  get  in  or  out  without  his 
knowledge.  An  assignment  after  his  alleged  levy  or  an 
actual  levy  by  another  officer  would  prevail.  Secret 
levies  are  void  as  to  third  parties.  The  levy  should  be  so 
open  and  notorious  that  every  one  may  know  of  it.  The 
effect  of  failure  to  retain  possession  after  levy  will  be 
considered  later  (§114). 

§  94.  Same:  When  no  levy  necessary.  While  the 
officer  is  in  possession  and  control  he  cannot,  in  the  na- 
ture of  things,  make  a  seizure ;  and  no  new  seizure  is  nec- 
essary in  such  cases.  The  very  act  of  delivering  the 
process  to  him  to  be  levied  on  property  in  his  possession, 
operates  as  a  levy  from  the  time  of  the  delivery,  with- 
out any  act  or  intention  on  his  part  (36).  Though  the 
property  be  at  the  time  in  the  actual  possession  of  another 
person,  acting  as  keeper  for  the  officer,  no  new  formal 
levy  is  necessary ;  but  not  so,  if  the  property  has  been  re- 
turned to  the  defendant. 


(35)  Green  v.  Burke,  23  Wend.  (N.  Y.)  490. 

(36)  Field  v.  Macullar,  20  111.  App.  392. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     413 

§95.  Same:  Order  of  seizure,  inventory,  appraise- 
ment, indorsement  on  process,  etc.  The  statutes  make 
numerous  requirements  of  the  officer  in  executing  the 
processes;  for  example  that  he  shall,  at  the  time  of  re- 
ceiving them,  write  down  the  hour ;  that  he  shall  not  take 
realty  where  there  are  plenty  of  chattels;  that  he  shall 
make  a  written  inventory  of  the  property  taken ;  that  he 
shall  indorse  on  the  writ  a  statement  that  he  has  made 
the  levy,  describing  the  property  taken,  etc.  Though 
these  things  are  to  be  done  before  or  at  about  the  time 
of  making  the  levy,  they  are  no  part  of  it.  Levies  should 
not  be  held  void  because  these  requirements  are  dis- 
obeyed ;  and  in  some  cases  should  not  be  held  even  void- 
able, though  they  would  usually  be  so  (note  36,  above). 

§  96.  Effect  of  fraud  or  unlawful  act.  A  levy  otherwise 
valid  should  be  held  to  be  voidable,  most  courts  say  void, 
if  it  is  accomplished  by  means  of  any  fraud  or  unlawful 
act ;  for  no  one  should  be  permitted  to  take  advantage  of 
his  own  wrong,  and  no  lawful  thing  can  stand  on  an  un- 
lawful foundation  (37). 

§  97.  Attachment  and  garnishment  summonses.  The 
essentials  of  valid  service  of  summonses  on  garnishees 
and  defendants  in  attachment  differ  in  no  respect  from 
the  essentials  of  service  of  any  other  original  process. 
The  one  is  necessary  to  get  jurisdiction  to  render  a  judg- 
ment in  personam  against  the  defendant;  the  other,  to 
render  a  similar  judgment  against  the  garnishee  (38). 
Defects  in  the  service  which  would  not  be  fatal  on  other 


(37)  Bailey  v.  Wright,  39  Micli.  96. 

(38)  Compare  Pennoyer  v.  Neff,  95  U.  S.  714. 


414     ATTACHMENT,  GARNISHMENT,  EXECUTION 

processes  should  not  be  held  fatal  in  these  cases;  but 
there  are  decisions  which  make  distinctions  on  the  ground 
that  these  proceedings  are  statutory.  Appearance  by  the 
defendant  without  service,  or  after  defective  service, 
waives  the  objection  as  to  that;  and  appearance  by  the 
garnishee  waives  the  defect  in  the  service  as  a  summons 
as  to  him— several  courts  say,  as  an  attachment  also. 

§  98.  Notice  of  attachment,  garnishment,  or  execution. 
The  notice  often  required  by  statute  to  be  given  by  the 
officer  to  the  defendant,  or  to  the  person  found  in  posses- 
sion, to  inform  him  of  the  levy  of  the  execution  or  attach- 
ment, or  the  service  of  the  garnishment,  must  not  be 
confounded  with  the  summons  spoken  of  in  the  preceding 
subsection.  No  such  notice  is  necessary,  unless  the  stat- 
ute requires  it ;  and  failure  to  give  it  if  required,  or  when 
or  as  required,  would  seem,  on  principle,  to  be  a  mere  ir- 
regularity, rendering  the  levy  or  service  liable  to  be 
quashed  on  proper  application  by  one  entitled  to  com- 
plain. But  there  is  a  prevalent  disposition  on  the  part  of 
the  courts,  while  acknowledging  that  this  would  be  the 
only  effect  in  case  of  executions,  to  consider  this  notice 
jurisdictional  in  cases  of  attachment  and  garnishment, 
apparently  on  the  ground  that  these  proceedings  are 
statutory  (39). 


(39)     Freeman  on  Executions  §§257,  262. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     415 


CHAPTER  V. 
uen  anb  foeeclosube  (sale). 

Section  1.  When  Lien  Begins. 
§99.  At  common  law.  When  the  statutes  passed  in  the 
reign  of  Edward  I  first  made  lands  liable  to  execution 
to  satisfy  judgments,  the  courts  held  that  the  land 
was  liable  on  the  judgment  of  a  citizen  from  the  time 
the  judgment  was  rendered;  on  recognizances  and 
statutes  merchant  and  staple  from  the  day  the  recog- 
nizance or  statute  was  acknowledged ;  and  on  the  demand 
of  the  king  from  the  day  when  the  liability  was  incurred. 
These  decisions  did  not  depend  upon  any  provisions  of 
the  statutes  (1).  The  courts  felt  that  a  lien  from  these 
dates  respectively  was  necessary,  lest  the  defendant 
should  defeat  the  judgment  by  conveying  his  property 
away.  The  same  rule  has  been  adopted  by  several  of  the 
American  courts  where  the  writ  of  elegit  was  used,  and 
might  with  equal  propriety  be  applied  to  the  use  of  the 
fieri  facias ;  but  it  is  not  so  applied  in  states  where  no  lien 
is  provided  for  by  statute,  and  in  most  states  a  statutory 
lien  is  given  (2).  But  the  common  law  judges  felt  that  too 
great  mischief  would  result  from  holding  the  chattels 
liable  to  execution  from  the  day  the  judginent  was  ren- 

(1)  Massingill  v.  Downs,  7  How.  760. 

(2)  Woods  V.  Mains,  1  G.  Greene  (Iowa)  275. 


il6     ATTACHMENT,  GARNISHMENT,  EXECUTION 

dered;  and,  therefore,  they  held  that  the  plaintiff  could 
have  execution  only  of  the  chattels  which  the  defendant 
had  the  day  execution  was  sued  out,  or  which  he  after- 
wards acquired,  and  not  of  those  which  he  had  sold  be- 
tween the  day  on  which  the  judgment  was  recovered  and 
the  day  of  execution  sued  (3). 

§  100.  Under  statute  of  frauds.  In  promulgating  these 
rules,  probably  the  judges  were  not  thinking  of  judg- 
ments having  effect  before  they  were  rendered,  nor  of 
executions  dated  back  and  withheld  from  the  officer.  But 
by  a  fiction  of  the  common  law,  all  judgments  were  pre- 
sumed to  have  been  rendered  on  the  first  day  of  the  term, 
and  the  lien  upon  lands  dated  from  that  time ;  so  that  a 
bona  fide  purchaser  might  lose  his  property  by  the  lien 
of  a  judgment  rendered  after  his  purchase.  A  practice 
also  obtained  of  dating  back  executions  to  the  first  day 
of  the  last  preceding  term;  and,  worse  than  this,  it  be- 
came customary  to  take  out  executions  for  the  purpose 
of  obtaining  security,  or  perhaps  of  protecting  the  debtor, 
without  any  intention  of  delivering  them  to  the  officer 
to  be  executed.  By  this  means  chattels  were  taken  from 
persons  who  had  purchased  them  for  value  without  notice 
of  the  judgment,  and  perhaps  a  considerable  time  before 
it  was  rendered.  These  evils  induced  the  provisions  in 
the  statute  of  frauds,  29  Charles  II  (1677)  c.  3  §§  13-16, 
that  the  officer  signing  the  judgment  record  shall  put 
down  the  exact  day  of  doing  so,  that  the  judgment  shall 
be  a  lien  upon  the  land  only  from  that  time,  and  that  no 
fieri  facias  or  other  execution  shall  bind  the  goods  of  the 


(3)     Fleetwood's  Case,  8  Coke  171 ;  Green  v.  Johnson,  9  N.  Car.  309. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     417 

defendant  till  it  is  delivered  to  the  officer  to  be  executed, 
and  he  was  required  to  indorse  thereon  the  time  of  re- 
ceiving it.  In  most  American  states  the  provisions  of 
this  statute  with  regard  to  liens  upon  land  are  sub- 
stantially embodied  in  their  statutes ;  and,  in  nearly  half 
of  the  states,  the  provision  with  regard  to  chattels  is  also 
followed. 

§  101.  Modem  American  rule.  U!nder  the  statute  of 
frauds  the  defendant  might  sell  his  chattels  for  value  to 
an  innocent  purchaser  after  the  sheriff  had  received  his 
writ,  and  before  he  had  done  anything  to  give  notice  of 
the  lien;  from  which  it  will  be  seen  that  the  statute  did 
not  entirely  obviate  the  old  evil.  In  the  absence  of  any 
statute  governing  the  matter,  the  supreme  court  of  Iowa 
held  that  they  could  not  adopt  the  old  common  law  rule, 
which  was  so  unjust  that  it  had  to  be  changed  by  statute, 
and  that  the  commercial  spirit  of  the  age  is  so  averse  to 
secret  liens  that  they  could  not  recognize  any  claim  by 
the  creditor  till  the  moment  of  levy  (4).  Similar  con- 
siderations have  induced  the  legislatures  in  a  number  of 
states,  and  the  number  is  still  increasing,  to  adopt  the 
same  rule,  by  which  the  lien  of  the  execution  before  levy 
is  entirely  abolished. 

§  102.  Attachments  and  garnishments.  Attachment  of 
property,  except  as  a  species  of  distress,  was  unknown 
to  the  common  law;  and,  therefore,  we  have  no  old  de- 
cisions as  to  when  the  lien  of  an  attachment  commences. 
The  attachment  statutes  in  Arkansas,  Indiana,  and  Ken- 
tucky provide  that  the  lien  shall  attach  from  the  delivery 


(4)  Reeves  v.  Sebern,  16  Iowa,  234. 


418     ATTACHMENT,  GAENISHMENT,  EXECUTION 

of  the  writ;  in  Pennsylvania  it  relates  to  the  teste,  pro- 
vided that  it  shall  be  defeasible  by  any  bona  fide  pur- 
chase before  levy;  and  in  Tennessee  the  attachment  in 
chancery  is  made  a  lien  from  the  filing  of  the  bill.  Some 
of  the  statutes  expressly  provide  that  the  lien  shall  date 
from  the  levy;  but  the  most  of  them  contain  no  provision 
concerning  it ;  and  where  such  is  the  case  it  has  been  uni- 
versally held  that  the  attachment  creates  a  lien  from  the 
time  the  goods  are  actually  levied  on,  and  not  before  (5), 
even  by  courts  that  had  held  in  the  absence  of  controlling 
statutes  that  an  execution  creates  a  lien  from  the  time 
it  is  issued,  or  from  the  time  the  officer  received  it.  So, 
also,  garnishment  is  held  to  create  a  lien  upon  the  prop- 
erty in  the  hands  of  the  garnishee,  from  the  date  of  the 
service  of  the  writ  upon  him,  and  not  before  (6). 

Section  2.    Nature  op  Lien. 

§  103.  Against  officer.  For  any  breach  of  his  duty,  the 
officer  is  liable  to  the  plaintiff  in  an  action  against  him 
as  an  individual,  in  an  action  on  his  official  bond,  and  by 
summary  proceedings  in  the  court  and  cause  in  which 
the  wrong  was  committed.  The  nature  of  the  creditor's 
right  has  already  been  sufficiently  discussed  in  consider- 
ing his  right  to  control  the  processes,  and  in  speaking 
of  the  liability  of  the  officer ;  and  what  was  then  said  need 
not  be  here  repeated  (§  68,  above). 

§  104.  In  property  before  levy.  A  judgment  lien  on 
land  is  superior  to  an  execution  lien  on  chattels,  in  that 
it  is  not  cut  off  by  a  levy  and  sale  under  a  junior  judg- 


(5)  Pond  V.  Griffin,  1  Ala.  678;  Taffts  v.  Manlove,  14  Gal.  47. 

(6)  Fisher  v.  Hall,  44  Mich.  494. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     419 

ment.  The  creditor's  lien  on  chattels  before  levy,  where 
such  a  lien  is  allowed,  is  not  an  interest  in  any  specific 
property  of  the  debtor ;  but  merely  a  right  to  have  it  taken 
to  satisfy  the  judgment.  For  example,  the  legislature 
may  exempt  the  property  by  a  law  passed  after  the  officer 
receives  the  process;  or  the  defendant  may  acquire  the 
benefit  of  the  statute  by  marrying  during  that  time. 
Again,  if  the  officer  fails  to  levy  before  the  return  day 
the  lien  expires;  and  it  is  liable  to  be  defeated  before 
that  time  by  a  levy  under  a  junior  process  from  another 
court  (7),  but  not  by  a  prior  levy  by  the  same  officer  or 
his  deputy  under  a  junior  process  from  the  same  court  (8). 
Again,  he  cannot  maintain  a  suit  in  equity  to  require 
third  persons  to  deliver  property  to  the  sheriff  to  be 
levied  on  under  his  process,  nor  at  law  to  recover 
damages  for  concealing  or  injuring  property  which  he 
might  have  levied  upon.  His  right  to  maintain  an  action 
against  the  defendant  and  others  at  law  for  a  conspiracy 
to  defraud  him  by  keeping  the  property  beyond  his  reach, 
or  in  equity  to  set  aside  a  fraudulent  conveyance  have 
been  denied  on  this  ground ;  but  no  lien  is  necessary  to 
maintain  such  actions,  and  they  should  be  sustained.  His 
right  to  have  the  property  taken,  if  it  can  be  found,  is 
not  defeated  by  a  sale  for  value  to  an  innocent  pur- 
chaser (9),  by  the  death  of  the  defendant  (10),  by  his 
becoming  a  bankrupt,  nor  by  a  removal  of  the  property 
to  another  county  and  sale  by  the  defendant  to  an  inno- 


(7)  Pulliam  v.  Osborne,  17  How.  471. 

(8)  Kennon  v.  Ficklin,  6  B.  Mon.  414. 

(9)  Boucher  v.  Wiseman,  Cro.  Eliz.  440. 

(10)  Parsons  v.  Gill,  1  L.  Raym.  695. 


420     ATTACHMENT,  GAENISHMENT,  EXECUTION 

cent  purchaser,  or  levy  under  the  writ  of  another  creditor 
there,  provided  the  property  is  returned  and  levied  be- 
fore the  return  day  or  a  testatum  fieri  facias  is  issued  to 
the  other  county  and  levy  made  thereunder. 

§  105.  In  property  after  levy.  The  levy  does  not 
divest  the  defendant  of  his  title ;  he  may  sell  or  mortgage 
as  before  (11).  The  judgment  lien  on  land  does  not  unite 
with  the  lien  of  the  execution  or  levy.  A  person  who 
buys  land  subject  to  the  judgment  lien,  but  before  the 
lien  of  the  execution  attaches,  gets  title  free  from  the 
claim  of  the  creditor,  if  the  judgment  lien  expires  before 
the  sheriff's  sale,  though  it  had  not  expired  before  the 
levy  (12).  Yet  the  judgment  lien  on  land  and  the  lien 
of  a  levy  on  chattels  are  very  similar.  The  creditor  who 
loses  thereby  may  maintain  an  action  on  the  case  against 
anyone  who  injures  the  land  on  which  he  has  a  judgment 
lien  or  lien  by  levy ;  a  garnishing  creditor  may  maintain 
a  similar  action  against  anyone  who  interferes  with  the 
defendant's  property  in  the  garnishee's  possession  (13) ; 
and  an  attaching  or  execution  creditor  may  maintain  a 
similar  action  for  such  injury  whenever  he  has  no  other 
remedy.  There  are  several  decisions  in  which  such  ac- 
tions were  dismissed,  on  the  ground  that  the  plaintiff's 
only  remedy  was  against  the  officer,  and  only  the  officer 
acquired  an  interest  by  the  levy;  or  on  the  ground  that 
the  creditor's  remedy  against  the  officer  was  exclusive, 
wherever  he  had  a  remedy  against  the  officer;  or  on  the 
ground  that  the  plaintiff  had  not  shown  that  there  was 


(11)  Bigelow  V.  Willson,  1  Tick.  485. 

(12)  Wells  V.  Bower,  126  Ind.  115. 

(13)  Erskine  v.  Staley,  38  Va.  406. 


ATTACHMENT,  GAENISHMENT,  EXECUTION     421 

not  sufficient  other  property  to  satisfy  his  claim.  Prob- 
ably these  courts  would  agree  with  the  decisions  holding 
that  after  purchasing  at  the  sale  he  may  sue  in  trover 
for  a  conversion  before  the  sale  (14).  But  there  are 
other  cases  in  which  actions  by  the  creditor  at  law  and  in 
equity  have  been  sustained  against  third  persons  inter- 
fering with  the  property  in  the  officer's  possession,  al- 
though the  creditor  had  a  right  of  action  against  the 
officer  (15) ;  and  these  last  mentioned  decisions  seem 
correct.  Of  course,  a  creditor  having  a  lien  by  levy  could 
not  maintain  trespass,  trover,  or  replevin  against  anyone 
for  interference  with  the  property,  for  he  has  no  right 
of  possession  (16).  If  the  creditor  would  rather  have  the 
property  itself  or  its  proceeds  than  look  to  the  sheriff 
or  third  persons,  he  may  have  it  retaken  after  the  officer- 
has  abandoned  it,  provided  he  can  get  it  before  it  is  en- 
cumbered or  levied  upon  under  another  process.  If  the 
same  officer  has  sold  it  under  a  junior  process,  he  may 
have  the  proceeds  paid  over  to  him  on  motion  to  the 
court  before  they  are  paid  out,  or  sue  the  junior  creditor 
for  them  after  they  are  paid  (17) ;  but  he  cannot  take 
the  property  from  the  purchaser  at  the  sale  under  the 
junior  writ,  for  that  would  destroy  the  faith  in  sheriff's 
sales. 


(14)  Baker  v.  Beers,  64  N.  H.  102. 

(15)  Field  v.  Macullar,  20  111.  App.  432 ;  Howland  v.  Willetts,  9  N.  Y. 
170. 

(16)  Blake  v.  Shaw,  7  Mass.  505. 

(17)  Richards  v.  Morris,  20  N.  J.  L.  136;  Field  &  Macullar,  20  111. 
App.  432. 


422     ATTACHMENT,  GARNISHMENT,  EXECUTION 

Section  3.    Loss  of  Lien  After  Levy. 

§  106.  By  order  of  court.  Independently  of  any  statute, 
from  the  necessity  of  the  case,  every  court  has  jurisdic- 
tion to  quash  any  garnishment,  attachment,  execution, 
or  other  proceeding  pending  before  it,  either  before  or 
after  the  levy  or  service  has  been  made  (18) ;  and  no 
other  court  has  any  right  to  do  so,  except  as  a  court  of 
review.  The  power  of  the  judge  to  quash  writs  and  levies 
during  vacation  is  very  doubtful,  to  say  the  least,  unless 
given  by  express  statute,  as  it  usually  is  with  reference  to 
attachments.  Many  statutes  empower  court  commis- 
sioners or  the  court's  clerk  to  quash  attachments  during 
vacation,  when  the  judge  is  absent. 

§  107.  Who  may  complain.  The  plaintiff  certainly  has 
standing  to  invoke  the  court's  action  to  quash  his  process 
and  levy,  though  he  seldom  asks  the  favor.  The  defend- 
ant is  equally  entitled,  and  is  usually  the  party  moving 
for  such  action.  In  the  absence  of  statutory  provision, 
strangers  claiming  to  own  tangible  property  levied  upon 
are  generally  considered  to  have  no  standing  to  invoke  any 
action  in  the  proceedings,  and  as  having  a  sufficient 
remedy  by  replevin,  trespass,  and  trover,  for  the  property 
or  its  value.  Statutes  usually  provide  that  any  claimant 
may  intervene,  and,  where  such  is  not  the  case,  persona 
interested  in  the  property,  as  other  creditors  of  the  same 
debtor  having  liens  upon  it,  will  usually  be  admitted  (19). 
But  there  are  several  courts  in  which  the  right  has  been 
denied.    They  say,  '' Courts  of  justice  are  not  open,  like 


(IS)     Commonwealth  v.  Magee,  8  Pa.  St.  240. 
(10)     Ilawes  V.  Clement,  64  Wis.  152. 


ATTACHMENT,  GAENISEMENT,  EXECUTION     423 

tournaments,  for  errant  knights  to  enter  and  tilt  at 
pleasure"  (20). 

§  108.  Procedure.  A  bill  in  chancery  for  an  injunction, 
and  proceedings  in  a  court  of  review  on  error,  mandamus, 
certiorari,  and  prohibition,  are  not  generally  appropriate 
nor  available,  if  there  is  a  remedy  in  the  court  that  issued 
the  process.  Proceedings  by  audita  querela  in  the  same 
court  was  the  remedy  formerly  employed  to  obtain  relief 
from  unjust  levies ;  and  this  may  still  be  used,  no  doubt, 
if  not  abolished  by  statute.  But  a  simple  motion,  in  the 
same  court  and  cause,  with  reasonable  notice  to  the  other 
persons  interested,  is  so  much  cheaper,  easier  to  prose- 
cute, and  more  expeditious,  that  it  is  almost  the  only 
procedure  now  in  use;  except  where  a  special  procedure 
is  provided  for  by  statute,  as  to  which  the  statutes  of 
the  state  should  be  consulted. 

§  109.  Grounds  for  quashing  lien.  The  court  may 
order  the  process  or  levy  quashed  or  adjudge  the  lien 
subordinate:  (1)  because  it  is  absolutely  void,  and  this 
objection  is  available  to  anyone  in  any  form  of  procedure ; 
(2)  because  the  rights  of  other  persons  require  it  to  be 
quashed  or  made  subordinate,  though  it  be  not  void. 

§110.  Same:  Available  to  defendants.  The  defendant 
may  have  the  process  or  levy  quashed  because  of  any 
irregularity  not  amendable  nor  waived— for  example,  that 
the  affidavit,  bond,  or  process  was  too  early  or  too  late, 
not  executed  or  improperly  executed,  or  did  not  contain 
all  of  the  essential  parts;  or  because  the  facts  alleged 
to  obtain  the  attachment  did  not  exist— for  example,  that 

(20)     Porter  v.  West,  64  Miss.  548. 

Vol.  X— 2  9 


424     ATTACHMENT,  GAENISHMENT,  EXECUTION 

the  defendant  had  absconded,  was  a  non-resident,  or 
fraudulently  contracted  the  debt  sued  for ;  or  because  the 
cause  of  action  had  been  extinguished  since  the  attach- 
ment was  issued,  or  the  judgment  on  which  the  execution 
issued  had  been  satisfied,  either  before  or  after  the  process 
issued  (21).  Or,  admitting  that  the  preliminary  require- 
ments were  observed  and  that  the  process  is  regular,  he 
may  have  the  levy  quashed  because  of  any  fraud  or  illegal 
act  in  effecting  the  levy,  and  for  many  irregularities ;  or 
because  the  property  is  exempt.  But  he  cannot  object 
that  the  property  belongs  to  another,  and  is  being  used 
to  pay  his  debts;  that  is  his  good  fortune.  He  will  not 
be  allowed  to  deny  that  he  owes  the  debt  for  which  the 
attachment  issued,  for  that  would  require  a  trial  of  the 
merits  of  the  action.  He  cannot  urge  that  the  judgment 
on  which  the  execution  issued  is  incorrect,  for  he  has  had 
one  day  in  court  on  that  question. 

§  111.  Same:  Available  to  claimants  and  garnishees. 
Claimants  who  intervene  may  have  the  process  or  levy 
quashed  if  it  is  absolutely  void,  or  upon  allegation  and 
proof  that  it  is  being  used  as  an  instrument  to  defraud 
them  as  creditors  of  the  same  debtor.  But  they  will  not 
be  permitted  to  litigate  matters  between  themselves,  show 
that  the  defendant  does  not  owe  the  amount  claimed  of 
him  by  the  plaintiffs,  take  advantage  of  any  irregularities 
in  the  proceedings,  nor  show  that  the  property  attached 
does  not  belong  to  the  defendant.  The  issue  is  whether 
the  property  belongs  to  them,  not  whether  it  belongs  to 
the  defendant.    The  court  will  protect  any  interest,  legal 


(21)     Wills  V.  Chandler,  2  Fed.  Rep.  273. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     425 

or  equitable,  wliich  they  i^rove  belongs  to  them.  While 
a  garnishee  may  show  that  the  property  does  not  belong 
to  the  defendant,  and  may  take  advantage  of  jurisdic- 
tional defects  in  the  principal  action,  he  can  object  to  no 
irregularities  except  those  in  the  iDroceedings  agaiiist 
himself. 

§  112.  Abandonment  of  lien:  By  election  of  remedies. 
When  a  creditor  has  an  election  between  several  remedies 
without  a  right  to  pursue  more  than  one,  his  choice  of 
any  one  is  an  abandonment  of  any  rights  he  might  have 
under  the  others.  Thus,  when  a  man  having  a  judgment 
lien  on  land  sues  out  a  capias  and  imprisons  the  defendant 
under  it,  and  afterwards  obtains  recourse  against  the  land 
by  the  release  of  the  debtor,  he  takes  it  subject  to  all 
rights  acquired  during  the  interval  (22).  But  when  a 
creditor  may  proceed  under  several  processes  at  the  same 
time,  his  action  under  any  one  does  not  disparage  his 
right  to  proceed  subsequently  under  any  other  (23) ;  and 
a  levy  on  certain  property  by  the  officer,  even  at  the  direc- 
tion of  the  creditor,  is  not  an  abandonment  of  the  lien, 
which  the  delivery  of  the  writ  to  him  created  on  any  other 
property  necessary  to  satisfy  it.  A  subsequent  levy  on 
the  other  property  during  the  life  of  the  writ  will  over- 
reach all  rights  acquired  after  the  lien  commenced. 

§  113.  Same:  By  dropping  proceedings.  No  doubt  the 
lien  should  be,  as  it  has  often  been,  held  to  be  abated 
by  settlement  and  abandonment  of  proceedings  without 
completing  them,  or  by  appropriating  the  property  levied 


(22)  Rockhill  v.  Hanna,  15  How.  189. 

(23)  Spring  v.  Ayer,  23  Vt.  516. 


426     ATTACHMENT,  GAENISHMENT,  EXECUTION 

on  and  abandoning  without  settlement  (24).  Eeturning 
the  process,  taking  out  another,  and  making  a  levy  under 
it  on  other  property  have  been  held  not  to  show  an  aban- 
donment ;  and  when  the  new  levy  is  on  the  same  property 
the  whole  proceedings  under  the  second  process  may  be 
treated  as  mere  surplusage  and  the  sale  sustained  as  if 
made  under  the  first. 

§114.  Same:  By  surrendering  possession.  If  the 
officer  or  garnishee  abandons  without  the  plaintiff's 
knowledge  or  consent,  he  is  entitled  to  have  the  property 
retaken,  but  the  rights  of  innocent  persons  acquired  dur- 
ing the  interval  will  be  protected.  There  are  a  great 
many  cases  in  which  it  is  stated  in  broad  terms  that  the 
retention  of  possession  is  essential  to  the  continuance  of 
the  lien ;  but  most  of  these  are  cases  in  which  the  rights 
of  other  persons  have  intervened,  and  the  great  majority 
of  the  cases  hold  that  the  lien  is  not  lost  by  the  officer's 
leaving  the  property  in  the  possession  of  the  defend- 
ant (25). 

§  115.  Laches  and  abuse  of  process.  Mere  delay  in 
prosecuting  is  not  an  abandonment ;  but  from  it  the  court 
or  jury  may  find  an  intention  to  abandon,  and  very  slight 
delay  has  often  been  adjudged  such  an  abuse  of  process 
as  will  entitle  a  junior  creditor  to  priority.  No  delay  by 
the  officer  without  the  plaintiff's  authority  or  knowledge 
will  have  this  effect;  but  an  unreasonable  delay  will 
justify  the  jury  in  finding  knowledge  and  sanction  by 
the  creditor. 


(24)  Wilder  v.  Weatherhead,  32  Vt.  765;  Allen  v.  Hall,  5  Met.  263. 

(25)  Conn  v.  Caldwell,  6  111.  531. 


ATTACHMENT,  GAENISHMENT,  EXECUTION     427 

§  116.  Failure  of  action  or  judgment.  The  lien  by  gar- 
nisliment  is  abated  by  tlie  death  of  the  garnishee  before 
judgment  against  him,  or  by  the  death  of  the  defendant 
before  judgment  against  him,  unless  the  statute  provides 
otherwise;  and  the  same  is  true  of  attaclunent.  But  the 
lien  of  an  execution  levied  is  unaffected  by  the  death  of 
either  party  (§  29,  above).  Cases  are  numerous  in  which 
the  lien  has  been  held  to  be  abated  by  departures  from  the 
prescribed  procedure,  but  this  question  has  been  suffi- 
ciently discussed  already  (§§45-50,  and  see  §§121-22). 
A  judgment  and  the  lien  of  the  execution  thereon  may 
be  allowed  to  subsist  while  the  judgment  is  opened  to  try 
a  special  defense ;  and  an  appeal,  motion  for  a  new  trial, 
and  the  like,  would  have  no  effect  on  the  execution  or  lien. 
But  if  the  judgment  be  absolutely  set  aside  the  founda- 
tion of  the  execution  is  gone,  and  it  must  fall;  and  with 
it,  the  lien.  So  if  the  execution  be  set  aside.  Likewise, 
if  judgment  be  given  for  the  defendant  in  any  action,  all 
attachments  and  garnishments  pending  thereon  must  fall 
unless  saved  by  a  proper  appeal  (26). 
,  §  117.  Substitute  bond.  The  cases  are  not  agreed  as  to 
whether  the  lien  of  the  levy  is  divested  by  the  defendant 
giving  a  bond  to  obtain  a  release,  replevin,  appeal,  new 
trial,  injunction,  or  stay  of  proceedings;  but  it  is  sub- 
stantially agreed  that  no  such  effect  would  follow  the 
giving  of  any  bond  by  a  claimant  (27). 

Section  4.    Foreclosure  of  Lien. 
§  118.    In  attachment  and  garnishment.   Tlie  lien  which 
the  creditor  acquires  by  an  attachment  levy  can  be  fore- 


(26)  Erickson  v.  Duluth  Ry.  Co.,  105  Mich.  415. 

(27)  Rocco  V.  Parczyk,  77  Tenn.  328. 


428     ATTACHMENT,  GAENISHMENT,  EXECUTION 

closed  only  by  prosecuting  the  action  against  the  defend- 
ant to  judgment,  and  having  the  property  sold  on  an 
order  to  sell  or  execution  issued  on  that  judgment.  We 
need  not  consider  the  steps  required  to  obtain  a  judg- 
ment, since  they  are  the  same  in  such  cases  as  in  other 
actions.  Likewise,  the  lien  acquired  on  property  by  gar- 
nishment can  be  perfected  only  by  prosecuting  the  prin- 
cipal action  to  judgment,  if  that  has  not  already  been 
done,  and  by  prosecuting  the  garnishment  to  judgment 
against  the  garnishee.  When  the  garnishee  is  charged  as 
bailee,  that  is,  for  specific  tangible  property  in  his  posses- 
sion, it  is  also  necessary  to  take  out  execution,  levy  it  on 
the  property,  and  proceed  to  sale  as  in  other  cases;  or, 
if  the  garnishee  fails  to  produce  the  property  on  demand, 
to  levy  upon  and  sell  any  of  his  executionable  property 
to  an  equal  amount.  But  when  the  garnishee  is  charged 
as  debtor,  he  may  safely  pay  the  money  into  court  or  to 
the  plaintiff,  as  soon  as  the  judg-ment  is  rendered  and 
recorded  against  him,  without  waiting  for  execution  to 
issue  (28). 

§  119.  Proceedings  in  garnishment  from  summons  to 
judgment.  The  summons  to  the  garnishee  gives  him  a  cer- 
tain time,  named  therein  or  in  the  statute,  until  which 
he  is  not  liable  to  default  for  not  answering.  Under  some 
statutes  his  answer  is  a  mere  formal  pleading;  but  under 
most  statutes  the  plaintiff  is  entitled  to  a  personal  ex- 
amination, on  oral  interrogatories,  in  open  court,  either 
in  the  first  instance  or  upon  an  unsatisfactory  answer 
being  made.     If  the   garnishee   be   a  corporation,   the 


(2S)     Barber  v.  Ilowd,  85  Mich.  221. 


ATTACHMENT,  GAUNISIIMENT,  EXECUTION     429 

plaintiff  is  entitled  to  an  answer  by  some  agent  having 
knowledge  of  the  facts.  If  the  plaintiff  is  satisfied  with 
the  answer,  he  may  allow  the  cause  to  be  continued  till  he 
is  ready  to  take  judgment,  being  careful  not  to  entitle 
the  garnishee  to  have  it  dismissed  for  laches  (29).  But 
if  the  garnishee  has  not  confessed  liability,  the  plaintiff 
must  join  issue  on  the  answer  or  file  a  supplemental  com- 
plaint,  according  to  the  practice,  bring  the  issue  to  trial, 
and  adduce  such  evidence  as  would  prove  liability  in  an 
action  by  the  defendant  against  the  garnishee;  or  the 
garnishee  will  be  entitled  to  a  discharge.  The  trial  of  this 
issue  is  conducted  very  much  the  same  as  other  trials. 

§  120.  Conduct  of  execution  sales.  The  statutes  usually 
specify  with  considerable  particularity:  (1)  what  notice 
of  the  sale  shall  be  given— for  how  long,  in  what  language 
and  publication,  where  posted,  who  personally  notified, 
etc.;  (2)  where  and  when  the  sale  shall  be  held— on  the 
premises,  at  the  county  seat,  on  a  business  day,  between 
nine  a.  m.  and  six  p.  m.,  etc. ;  (3)  how  the  sale  shall  be  con- 
ducted—personalty offered  before  realty,  at  auction,  to 
the  highest  bidder,  for  cash,  in  parcels,  within  view  of 
the  property,  after  clearly  pointing  it  out,  etc.;  (4)  what 
the  officer  shall  do  after  the  sale— in  disposing  of  the  pro- 
ceeds, in  giving  evidence  of  title  to  the  purchaser,  in  mak- 
ing report  of  his  doings  to  the  court,  etc.  Obviously  it 
would  be  out  of  place  to  attempt  a  discussion  of  each 
of  these  requirements  at  length  in  an  article  of  this  kind. 
The  requirements  are  quite  different  in  different  states, 
and  the  reader  is  referred  to  the  statutes.    To  the  statu- 


t29)     See  Webber  v.  Bolte,  51  Mich.  113. 


430     ATTACHMENT,  GARNISHMENT,  EXECUTION 

tory  requirements  the  courts  have  added  others ;  for  ex- 
ample, that  the  officer  shall  not  directly  or  indirectly  buy 
at  the  sale,  that  he  must  be  otherwise  competent  as  here- 
inbefore indicated,  etc. 

§  121.  Effect  of  defects.  Without  attempting  to  speak 
of  each  of  the  requirements  in  detail,  it  may  be  said,  that, 
if  the  property  is  simply  handed  over  to  the  creditor  with- 
out a  sale,  or  the  garnishment  is  dropped  on  payment  by 
the  garnishee  to  the  creditor,  without  the  garnishment 
being  carried  to  judgment,  the  title  of  the  defendant  is 
not  divested,  and  the  creditor  acquires  none  of  which  he 
can  avail  himself  even  on  collateral  attack  (30).  On  the 
other  hand,  it  seems  pretty  clear  that  the  proceedings  are 
not  liable  to  collateral  attack  because  of  any  irregularities 
in  them.  If  the  officer  has  sold  without  the  proper  notice, 
at  an  improper  time  or  place,  en  masse,  on  credit,  or  the 
like,  he  may  be  liable  to  an  action  by  anyone  injured  who 
has  not  waived  his  right  to  sue ;  and,  on  that  ground,  the 
sale  would  be  set  aside  on  a  proper  and  seasonable  ap- 
plication by  anyone  prejudiced  by  the  default.  But  it 
is  not  liable  to  collateral  attack  (31).  The  sheriff's  deed 
is  not  void  because  it  misdescribes  the  judgment,  or  does 
not  describe  it  at  all. 

§  122.  Officer's  return.  The  purchaser's  title  does  not 
depend  on  the  officer  making  a  true  return  or  any  return 
at  all,  nor  on  his  accounting  for  the  proceeds.  The  officer 's 
return  is  his  report  to  the  court  of  his  doings  under  the 
process;  and  should  be  in  writing,  on  the  back  of  the 


(30)  Allen  v.  Hall,  5  Mete.  2G3. 

(31)  Cavanaugh  v.  Jakeway,  1  Walker's  Ch.  (Mich.)  344. 


■   ATTACHMENT,  GARNISHMENT,  EXECUTION     431 

process  or  on  some  paper  attached  thereto,  dated,  and 
signed;  and  should  state  in  detail  just  what  the  officer 
has  done,  and  not  merely  that  he  has  executed  the  process 
according  to  law.  A  return  is  never  too  late  to  be 
valid  (32) ;  but  the  officer  is  liable  to  amercement  by  the 
court,  or  an  action  for  damages  by  the  party  injured,  if 
he  fails  to  return  it  on  or  before  the  return  day  (33). 
The  return  may  be  amended  by  the  officer  without  con- 
sent of  the  court  at  any  time  before  the  officer  surrenders 
possession  of  it;  but  afterwards,  only  on  special  order. 


(32)  Smith  v.  Osgood,  46  N.  H.  178. 

(33)  Burk  v.  Campbell,  15  Johns.  (N.  Y.)  456. 


432     ATTACHMENT,  GAKNISHMENT,  EXECUTION 


CHAPTER  VI. 

SATISFACTION  AND  SUBSEQUENT  RIGHTS. 

SECTioisr  1.    What  Constitutes  a  Satisfaction. 

§  123.  Outline.  What  remains  to  be  said  regarding 
satisfaction  of  judgments  may  be  considered  under  the 
following  heads:  (1)  by  use  of  the  court's  processes;  (2) 
by  setting  off  against  other  judgments;  (3)  by  recovering 
another  judgment ;  (4)  by  lapse  of  time;  (5)  by  payment. 
Of  these  in  their  order. 

§  124.  By  use  of  process.  Any  satisfaction  of  the  judg- 
ment by  use  of  the  court's  processes  without  actually 
realizing  the  amount  is  only  conditional  at  most;  and 
this  question  has  been  sufficiently  considered  already 
(§  30).  Conceding  that  arresting  the  defendant  on  ca.  sa. 
and  releasing  him,  or  seizing  his  property  on  fi.  fa.  and 
releasing  it,  would  operate  as  a  satisfaction  of  the  judg- 
ment (and  there  are  several  decisions  denying  the  last 
part  of  the  proposition),  no  such  result  would  follow 
from  surrendering  priority  in  favor  of  a  junior  creditor 
(1).  Though  such  action  would  release  a  surety,  and 
would  entitle  a  person  having  an  intermediate  lien  to 
priority ;  even  these  results  would  not  be  produced  by  the 
court  erroneously  decreeing  priority  to  the  junior 
creditor,  and  the  senior  creditor  acquiescing  therein  (2). 


(1)  Bank  of  Pennsylvania  v.  Winger,  1  Rawle  (Pa.)  295. 

(2)  Hamilton  v.  Mooney,  84  N.  Car.  12. 


ATTACHMEXT,  GAENISHMENT,  EXECUTION     433 

§  125.  By  setting  off  against  other  judgments.  In  the 
absence  of  statutes  touching  the  matter,  courts  have  such 
power  over  their  judgments  that  they  can  order  one  set 
off  against  another.  "When  a  person  desires  a  judgment 
in  his  favor  credited  on  a  judgment  against  him,  he  must 
apply  to  the  court  in  which  the  judgment  stands  against 
him,  for  no  other  court  could  enter  satisfaction  on  it.  In 
such  cases,  the  court  will  order  satisfaction  entered  upon 
condition  that  satisfaction  to  an  equal  amount  be  entered 
on  the  other  judgment.  The  rules  as  to  mutuality  of 
parties  are  much  the  same  as  upon  setting  off  other  de- 
mands. 

§  126.  By  recovering  another  judgment.  The  judgment 
cannot  be  used  after  a  judgment  has  been  recovered  on 
it.  See  Judgments,  §  37,  elsewhere  in  this  volume.  Re- 
covery of  judgment  against  one  of  several  persons  jointly 
and  severally  liable  does  not  satisfy  a  judgment  pre- 
viously recovered  against  another  of  them.  But  satisfac- 
tion of  one  of  such  judgments,  in  whole  or  in  part,  whether 
it  be  the  largest  or  the  smallest,  satisfies  all  in  the  same 
projDortion. 

§  127.  By  lapse  of  time.  At  common  law,  no  action 
could  be  maintained  on  a  judgment  over  twenty  years 
old  without  proving  that  it  had  not  been  paid;  which 
might  be  shown  by  recent  acknowledgements  of  it,  pay- 
ments on  it,  etc.  A  lapse  of  less  time  would  sustain  a 
finding  of  payment.  In  this  country,  some  states  have 
adopted  the  common  law  rule  by  statute;  while  others 
have  shortened  the  time,  and  required  the  acknowledge- 
ments to  be  in  writing. 


434     ATTACHMENT,  GARNISHMENT,  EXECUTION 

§  128.  By  payment:  To  whom.  If  the  debtor  is  given 
no  directions  to  the  contrary  by  the  owner  of  the  judg- 
ment, it  is  satisfied  to  the  amount  paid  by  a  payment  to 
any  of  the  joint  creditors ;  to  the  attorney  who  recovered 
the  judgment  (3) ;  to  an  officer  having  process  to  collect 
the  judgment  not  yet  returnable,  or  on  which  a  levy  was 
made  before  the  return  day  and  remains  undisposed  of; 
or  to  the  court's  clerk  while  authorized  by  statute.  And 
in  all  of  these  cases  it  does  not  matter  that  the  money  so 
paid  is  never  accounted  for  to  the  owner  of  the  judgment. 
But  payment  does  not  satisfy  in  the  absence  of  express 
authority  to  receive  it,  when  it  is  made  to  an  officer  who 
has  no  process  on  the  judgment,  or  who  has  process  past 
due  on  which  no  levy  has  been  made,  or  whose  process 
was  issued  on  the  order  of  the  party  making  payment  and 
without  authority  from  the  creditor  (4) ;  nor  when  made 
to  the  clerk,  while  execution  is  in  the  hands  of  the  sheriff 
or  before  the  judgment  was  rendered ;  nor  when  made  to 
anyone  but  the  real  owner  of  the  judgment,  if  he  has 
notified  the  debtor  to  pay  no  one  else.  For  example,  the 
real  owner  may  recover  notwithstanding  payment  to  the 
nominal  plaintiff;  and  a  person  having  a  lien  on  the  judg- 
ment as  attorney  or  otherwise  (5),  or  to  whom  a  part 
interest  in  the  judgment  has  been  assigned,  may  recover, 
notwithstanding  a  payment  to  the  judgment  creditor,  pro- 
vided the  debtor  has  been  notified  not  to  make  such 
payment. 


(3)  McCarver  v.  Nealey,  1  G,  Greene  (Iowa)  360. 

(4)  Osgood  V.  Brown,  Freem.   (Miss.)   392. 

(5)  Andrews  v.  Morse,  12  Conn.  444. 


ATTACHMENT,  GAENISHMENT,  EXECUTION     435 

§  129.  Medium  and  amount.  Neither  the  attorney  (6) , 
the  clerk  of  the  court,  nor  the  officer  executing  the  process 
can  receive  anything  other  than  money  in  payment,  nor 
give  satisfaction  for  more  than  the  amount  actually  re- 
ceived, unless  such  action  is  specially  authorized  or  after- 
wards ratified  by  the  owner  of  the  judgment.  "When  these 
agents  have  received  something  other  than  money,  either 
as  payment  or  to  be  converted  into  money  and  applied, 
it  has  been  held  that  in  doing  so  they  acted  as  agents  for 
the  debtors ;  and  that,  if  they  convert  into  money  but  do 
not  account  for  it,  it  is  no  payment,  and  the  creditor  is 
entitled  to  a  new  execution  or  to  sue  over.  Of  course,  the 
creditor  may  bind  himself  by  receiving  anything  in  pay- 
ment which  satisfies  him;  but  the  courts  are  not  agreed 
as  to  whether  he  is  bound  by  a  satisfaction  in  full  of  an 
absolute  judgment,  in  consideration  of  a  payment  in 
money  of  a  part  of  it  by  the  defendant. 

§  130.  Whose  pa3niient  satisfies.  Assignment  and  sub- 
rogation. Payment  of  the  amount  of  the  judgment  by  a 
stranger,  on  executing  an  assignment  of  the  judgment  to 
the  latter,  does  not  satisfy  it ;  and  the  assignee  is  entitled 
to  execution  (7).  When  a  stranger  at  the  request  of  the 
debtor  advances  the  amount  to  pay  a  judgment,  with  a 
mutual  understanding  that  the  judgment  shall  be  kept 
alive  for  his  benefit,  he  is  entitled  to  have  it  enforced 
by  execution,  though  no  formal  assignment  was  executed. 
So,  when  one  who  has  purchased  property  subject  to  a 
judgment  lien  pays  the  creditor,  with  a  like  understand- 


(6)  McCarver  v.  Nealey,  1  G.  Greene  (Iowa)  360. 

(7)  Steele  v.  Thompson,  62  Ala.  323. 


436     ATTACHMENT,  GARNISHMENT,  EXECUTION 

ing,  to  save  the  property.  The  same  privileges  have  been 
accorded  to  sheriffs,  who  have  had  to  pay  the  amount 
because  they  failed  to  collect  it  on  executions  given  to 
them  (8),  to  sureties  who  have  paid  (9),  and  even  to  one 
of  the  principal  debtors,  who  has  paid  the  full  amount 
when  the  others  should  have  paid  in  equal  proportion. 
But,  by  the  great  weight  of  authority,  the  judgment  is 
satisfied  as  soon  as  the  creditor  receives  payment  from 
the  sheriff,  or  from  one  of  the  debtors,  though  he  be  only 
a  surety  and  the  payment  be  made  under  the  guise  of 
taking  an  assignment.  This  is  because  it  would  not  be 
safe  to  make  a  man  a  judge  of  his  own  rights ;  but  each 
of  these  parties  is  entitled  to  redress,  by  action  at  law 
for  money  paid  to  the  use  of  the  real  debtor,  or  by  bill  in 
equity  for  subrogation  to  the  rights  of  the  creditor  (10). 

Section  2.    Rights  After  Satisfaction. 

§  131.  Proof  and  entry  of  satisfaction.  As  a  necessary 
incident  of  its  power  to  administer  justice,  every  court 
has  jurisdiction  to  inquire  whether  its  judgments  have 
been  satisfied,  and  to  enter  satisfaction  on  its  records 
whenever  a  satisfaction  in  fact  is  found  (11).  The  pro- 
cedure is  to  move  that  satisfaction  be  entered,  give  all 
persons  interested  notice  of  the  motion,  and  support  it 
by  such  proof  as  the  facts  afford  (12). 

§  132.  Appeal  after  satisfaction.  The  courts  are  not 
agreed  as  to  whether  an  appeal  may  be  maintained  after 


(8)  Heilig  v.  Lemley,  74  N.  Car.  250. 

(9)  Southeren  v.  Reed,  4  H.  &  J.   (Md.)  307. 

(10)  Bones  v.  Aiken,  35  Iowa,  534. 

(11)  Bailey  v.  Hester,  101  N.  Car.  538. 

(12)  Abercrombie  v.  Chandler,  9  Ala.  625. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     437 

the  judgment  has  been  satisfied ;  but  the  better  view  seems 
to  be  that  an  appeal  lies  in  favor  of  a  defendant,  who  has 
paid  to  avoid  execution  being  issued,  or  in  favor  of  a 
plaintiff,  who  has  accepted  payment  of  what  was  awarded 
him  without  taking  it  as  payment  in  full.  One  who  has 
attempted  to  enforce  a  judgment  in  his  favor  might  with 
greater  reason  be  held  to  be  precluded  from  seeking  to 
avoid  it. 

§  133.  Restitution  on  reversal.  On  reversal  of  the  judg- 
ment after  sale  on  execution  under  it,  or  after  payment 
of  the  amount  by  the  defendant  to  avoid  execution,  the 
defendant  is  entitled  to  be  restored  to  his  original  posi- 
tion. He  may  without  demand  sue  the  plaintiff  for  the 
amount,  or,  at  his  option,  for  the  specific  property  taken 
if  the  plaintiff  purchased  it  at  the  sale.  The  courts  are 
not  agreed  as  to  whether  the  amount  which  he  can  re- 
cover is  the  amount  which  the  property  brought  at  the 
sale,  or  its  real  value. 

§  134.  Protection  of  third  parties  when  judgment  is 
reversed.  A  garnishee  is  protected  by  payment  of  the  debt 
or  delivery  of  the  property  on  the  judgment  against  him, 
although  the  defendant  afterwards  obtains  a  reversal  of 
that  judgment,  or  of  the  judgment  in  the  main  action  (13). 
When  a  stranger  to  a  judgment  purchases  property  at 
a  sale  under  execution  thereon,  his  title  is  unaffected  by 
the  subsequent  reversal  of  the  judgment,  though  he  knew 
that  an  appeal  was  pending  or  might  i5e  taken  (14).  This 
rule  has  been  held  to  extend  to  one  who  was  interested  in 


(13)  Troyer  v.  Schweizer,  15  Minn.  241. 

(14)  Gould  V.  Sternberg,  128  111.  510. 


438     ATTACHMENT,  GARNISHMENT,  EXECUTION 

the  sale  as  a  junior  lien-holder,  but  not  to  the  attorney 
for  the  creditor  on  whose  judgment  the  sale  was  made. 
If  this  protection  were  not  allowed,  said  Lord  Coke :  ' '  The 
vendee  would  lose  his  term  and  his  money  too,  and  there- 
upon great  inconvenience  would  follow,  that  none  would 
buy  of  the  sheriff  goods  and  chattels  in  such  cases,  and 
so  execution  of  judgments  (which  is  the  life  of  the  law) 
would  not  be  done"  (15).  Some  courts  have  thought  that 
the  purchaser  should  be  equally  protected  when  he  pur- 
chases while  the  appeal  is  pending,  though  the  purchaser 
at  the  sheriff's  sale  was  the  plaintiff  or  his  attorney;  but 
this  is  generally  denied,  because  the  reasons  for  the  rule 
do  not  seem  to  require  it  (16). 

§  135.  Vacating  false  satisfaction.  The  general  powers 
of  superior  courts  give  them  jurisdiction  to  set  aside 
satisfactions  entered  on  their  judgments;  and  they  will 
do  so  whenever  justice  requires  it.  But  the  clerks  of 
these  courts  possess  no  such  powers.  Justices  of  the 
peace  cannot  vacate  their  judgments ;  and  by  analogy  of 
reason,  would  seem  to  lack  power  to  vacate  satisfactions 
entered  on  their  judgments.  The  only  remedy  in  such 
cases  would  seem  to  be  to  sue  over  on  the  judgment  (17). 
Whether  a  court  should  vacate  a  satisfaction  produced 
by  a  sale  of  the  property  of  a  stranger,  or  of  exempt  prop- 
erty, is  disputed;  but  the  majority  of  the  courts  favor 
setting  aside  the  satisfaction  and  issuing  a  new  execution 
in  both  of  these  cases,  in  favor  of  the  plaintiff  if  he  was 
the  purchaser  at  the  sale,  for  the  use  of  the  purchaser 

(15)  Manning's  Case,  8  Coke  94,  97. 

(16)  Singly  v.  Warren,  18  Wash.  434. 

(17)  Piper  v.  Elwood,  4  Denio  (N.  Y.)  165. 


ATTACHMENT,  GARNISHMENT,  EXECUTION     439 

if  he  was  a  strangor  (18).  A  few  courts  have  set  aside 
satisfaction  and  issued  new  executions,  because  the  prop- 
erty was  encumbered  for  more  than  it  was  worth ;  but  it 
is  generally  held  that  the  satisfaction  cannot  be  set  aside 
because  the  purchaser  was  mistaken  as  to  the  quality  of 
the  property  or  the  value  of  the  defendant's  estate  in 
it  (19).  And  it  is  quite  generally  agreed  that  no  action 
can  be  maintained  by  the  purchaser  against  the  sheriff 
or  the  plaintiff  for  the  money  paid,  nor  against  the  de- 
fendant for  the  loss  from  an  excessive  bid.  There  is  no 
warranty  at  such  sales.    Caveat  emptor  applies. 

(18)  Watson  v.  Reissig,  24  111.  282. 

(19)  Poppleton  v.  Bryan,  36  Ore,  69. 


Vol.  X— ,30 


APPENDIX  A. 

INTERNATIONAL  LAW. 

§  1.  How  is  public  international  law  distinguished  from  private 
international  law? 

§  2.  What  gives  a  rule  of  international  law  its  binding  character 
of  law? 

What  are  the  sources  of  international  law? 

§  3.  What  event  in  the  seventeenth  century  marked  the  beginning 
of  a  new  epoch  in  the  history  of  international  law? 

§  5.     Is  a  colony  of  a  nation  a  sovereign  state? 

§  '6.  A  state  which  is  a  monarchy  is  divided  into  two  parts,  one 
part  remaining  a  monarchy  and  the  other  adopting  a  republican  form 
of  government.     Is  the  identity  of  the  former  state  lost  ? 

§  7.  What  is  the  difference  betAveen  a  state  under  the  protectorate 
of  another  state  and  a  state  under  suzerainty? 

§  8.  What  does  a  recognition  of  the  independence  of  a  revolting 
community  before  the  revolting  section  has  in  fact  achieved  its  in- 
dependence amount  to? 

§  9.  In  what  cases  is  recognition  of  belligerency  by  other  states 
than  the  parent  state  allowed? 

§  10.  What  effect  has  the  conquest  of  one  state  by  another  upon 
the  treaties  made  by  the  conquered  state? 

§  12.  In  what  cases  is  one  state  permitted  to  enter  upon  terri- 
tory of  a  foreign  independent   state? 

By  the  Monroe  Doctrine  in  1823,  the  United  States  declared  that 
it  Avould  not  permit  third  parties  to  intervene  in  America  to  sub- 
due infant  communities  which  had  proved  too  strong  for  Spain. 
Could  acts  done  by  the  United  States  under  this  policy  be  justified 
by  the  rules  of  international  law? 

§13.     What  is  meant  by  intervention'? 

§  15.    When  is  intervention  justified? 

§  16.  In  X  country  persons  accused  of  crimes  are  not  given  the 
right  to  a  trial  by  jury.  Has  another  state  a  right  to  intervene  to 
prevent  this? 

§  17.     Is  intervention  to  preserve  the  balance  of  power  justifiable? 

§  21.  A  government  explorer  of  X  country  discovers  an  island 
and  returns  to  his  country.     A  year  later  Y  country  sends  a  delega- 

440 


APPENDIX  A  441 

tion  to  formally  occupy  the  island.  Ten  years  later  a  sailing  vessel 
with  only  citizens  of  Z  country  on  board  is  wrecked  near  the  island 
and  the  crew  and  passengers  establish  their  home  on  the  island. 
What  country  has  title  to  the  island? 

§  24.  How  can  the  acquisition  of  territory  by  prescription  be 
justified  ? 

What  is  th(j  length  of  time  required  to  give  title  by  prescription'? 

§  25.     What  is  title  by  accretion  ? 

§  27.  X  state  cedes  certain  land  on  one  side  of  a  river  to  an- 
other state.     Where  is  the  boundary  line? 

§  29.  X  country  is  under  the  protectorate  of  Y  country.  A  citi- 
zen of  Z  country  is  wrongfully  held  a  prisoner  by  X  country.  Is 
Y  country  bound  to  interfere? 

§  30.     What  is  a  sphere  of  influence?    How  is  its  size  determined? 

§36.     What  is  meant  by  "marginal  seas"? 

§  §  31-39.  X  and  Y  states  are  divided  by  a  navigable  river.  A 
crime  is  committed  on  a  public  ship  of  Z  state  while  navigating  the 
river.     Which  state  has  jurisdiction  to  try  the  offender? 

§40.     How  is  piracy  punishable?     By  what  form  of  punishment? 

§42.     How  may  citizenship  in  the  United  States  be  acquired? 

§  43.  Can  a  subject  of  Germany  be  held  to  military  duty  upon 
his  return  to  Germany  after  becoming  naturalized  in  the  United 
States? 

§  45.     What  militai-y  service  may  aliens  be  compelled  to  render? 

§  46.  The  sovereign  of  X  state  is  travelling  in  Y  state.  The 
authorities  of  Y  state  are  trying  to  capture  an  escaped  convict. 
The  sovereign  of  X  state  harbors  the  convict  in  his  house.  What 
remedy  have  the  authorities  of  Y  state? 

§  49.  Who  has  jurisdiction  over  troops  of  one  country  passing 
through  another? 

§  §  50,  51.  What  is  the  distinction  between  public  ships  and  mer- 
chant vessels  in  territorial  waters  of  another  state  in  regard  to  the 
jurisdiction  ? 

§54.    What  is  a  political  offense? 

§  60.     How  is  a  diplomatic  mission  terminated  ? 

§  66.  A  treaty  is  signed  by  the  agent  of  X  state  on  Januai-y  12, 
1892.     It  is  ratified  April  3,  1892.    From  what  time  did  it  take  effect  ? 

§  68.  X  and  Y  states  neither  having  a  sea  coast  boundary  agree  by 
treaty  not  to  maintain  navies.  Later  X  state  acquires  territory  on 
the   sea   coast   and   is  threatened   with  invasion   by   the  fleet  of  Z 


442  APPENDIX  A 

country.  X  state  then  builds  a  navy.  Is  this  a  violation  of  its  treaty 
with  Y  state? 

§  §  77,  78.     What  is  the  difference  between  retorsion  and  reprisal? 

§84.    What  is  meant  by  "reasonable  necessities  of  war"? 

§89.     What  determines  the  enemy  character  of  persons? 

§  93.  What  are  the  reasons  for  not  permitting  a  capturing  army 
to  destroy  immovable  public  property? 

§  98.  When  is  pr6perty  upon  the  seas  impressed  with  enemy 
character? 

§  102.  What  laws  are  granted  in  territory  under  military  occu- 
pation ? 

§  106  What  requirements  must  be  observed  by  a  bombarding 
fleet  before  the  bombardment  is  begun  and  while  it  is  gong  on? 

§  112.     What  are  the  different  modes  of  termination  of  wari 

§  114.     What  is  the  principle  of  postliminium? 

§127.    What  is  contraband  of  war? 


APPENDIX  B 

DAMAGES. 

§  1.  What  is  the  difference  between  the  forms  of  relief  granted 
by  law  courts  and  courts  of  equity? 

How  is  legal  judgment  for  damages  enforced? 

§  §  2,  3.  White  sees  Green 's  bull  at  large  in  Green 's  garden,  and 
it  is  apparent  that  if  the  bull  is  not  driven  out,  it  will  cause  damage 
to  the  garden  amounting  to  $100.  He  goes  over  and  succeeds  in 
driving  the  bull  back  into  its  pasture  and  penning  it  up,  but  in  do- 
ing so  he  breaks  Gi-een's  clothes-line  post  which  is  worth  $5.  Green 
sues  him  for  trespass.    What  damages  can  he  recover,  if  any? 

A  dealer  has  built  up  a  large  trade  in  oil.  A  large  corporation 
opens  a  branch  agency  in  competition  with  him,  and  sells  its  oil  at  a 
price  below  the  actual  cost  of  production,  until  it  succeeds  in  divert- 
ing a  large  part  of  the  dealer's  trade.  The  dealer  sues  the  corpora- 
tion, claiming  as  his  damages  the  amount  of  profits  which  he  shows  he 
has  lost  through  loss  of  sales  of  his  oil.     Can  he  recover? 

A  retail  grocer  had  been  in  the  habit  of  making  all  of  his  pur- 
chases from  the  plaintiff  Company,  who  were  wholesale  grocers.  The 
retailer's  employes,  upon  the  order  of  their  union,  declared  a  strike, 
and  during  the  continuance  of  the  strike  the  plaintiff  Company  was 
damaged  in  the  amount  of  $100  through  loss  of  sales  to  the  retailer. 
It  sued  the  union  for  this  amount.    What  decision? 

Jones  owns  an  amusement  park  into  which  he  invites  the  public, 
to  witness  a  free  base-ball  game.  Bearing  a  grudge  against  Brown, 
he  refuses  to  the  latter  permission  to  enter;  but  Brown  afterwards 
succeeds  in  entering  while  Jones'  back  is  turned.  Jones  finds  him 
in  the  grounds,  ejects  him,  and  sues  him  for  trespass.  Can  he  re- 
cover damages? 

§  §  4-6.  Jones  suffers  a  legal  injury  without  any  damages.  What 
can  he  recover? 

Dale  writes  and  publishes  defamatory  words  about  Hale.  The 
words  cause  Hale  no  damage.    Has  Hale  an  action  against  Dale? 

What  is  meant  by  the  measure  of  damages? 

§  §  7,  8.    Plaintiff   contends   that   defendant  negligently   ran  his 

443 


444  APPENDIX  B 

automobile  into  defendant's  automobile  thereby  injuring  plaintiff. 
The  court  instructs  the  jury  that  if  they  find  the  defendant  was  neg- 
ligent they  shall  find  him  guilty  and  assess  the  damages  at  $200.  Is 
there  any  objections  to  this  instruction'? 

§  9.  Upon  what  principle  are  excessive  damages  set  aside  by  the 
court  ? 

§  10.  Upon  what  principle  does  a  court  disturb  a  verdict  for 
inadequate  damages'? 

§§11-14.     What  is  meant  by  nominal  damages'? 

Jones  contracts  with  Clark  to  take  care  of  his  lawn  for  a  year, 
Clark  to  pay  five  dollars  a  month.  At  the  end  of  the  second  month, 
when  Clark  has  paid  ten  dollars,  Jones  refuses  to  go  on  with  the 
contract.  Clark  without  any  trouble  or  expense  procures  another 
man  for  four  dollars  a  month  to  do  the  same  work.  Clark  brings 
an  action  against  Jones  for  breach  of  contract.  What  can  he 
recover'? 

White,  without  permission,  goes  into  Mason's  yard  and  takes  his 
lawn  mower  which  he  uses  for  a  few  hours.  He  then  cleans  and 
sharpens  it  and  returns  it  in  better  condition  than  before.  Mason 
brings  an  action  for  trespass  and  for  the  wrongful  taking  of  his 
lawn  mower.    What  can  he  recover"? 

§  §  16-19.  The  action  is  for  trespass  for  false  imprisonment 
under  a  warrant  plainly  illegal.  The  court  refuses  to  interfere  with 
a  verdict  for  $1,500  damages,  though  it  appears  that  so  far  as  actual 
injury  is  concerned  $100  would  have  been  enough.    Is  this  proper*? 

In  an  action  for  breach  of  contract  the  court  instructs  the  jury 
that  if  they  find  the  defendant  guilty  they  shall  award  besides  the 
actual  damages,  exemplary  damages  to  the  amount  of  $200.  Is  this 
insti-uetion   good? 

§  §  20,  21.  The  conductor  of  a  train  arrests  a  passenger  in  an 
illegal,  wanton,  and  oppressive  manner,  the  company  not  having  in 
any  way  authorized  or  ratified  the  act.  Is  the  company  responsible 
in  exemplary  damages? 

A  brakeman  acting  in  the  course  of  his  employment  unecessarily 
makes  a  violent  attack  upon  a  passenger.  Is  this  a  proper  case  for 
a  verdict  for  exemplai-y  damages  against  the  railroad? 

A  telegraph  operator  acting  within  the  scope  of  his  employment, 
but  negligently  or  in  bad  faith,  transmits  a  libellous  message. 
Is  the  company  responsible  in  exemplary  damages? 

§  22.    What  is  the  fundamental  principle  of  the  law  of  damages'? 


APPENDIX  B  445 

§  24.  What  is  the  difference  between  liquidated  damages  and 
a  penalty? 

§  §  25,  26.  Gale  sells  Buck  a  newspaper  establishment,  with  sub- 
Ecription  list  and  good-will  for  $3,500,  Gale  agreeing  not  to  establish 
any  newspaper  within  certain  limits,  and  in  case  of  breach  to  pay 
$3,000  as  liquidated  damages.  Are  the  $3,000  liquidated  damages  or 
a  plenalty? 

On  May  1,  1890,  Mack  contracts  with  Johnson  to  sell  him  a 
share  of  stock,  the  mai-ket  vaule  of  which  is  $150,  on  August  1,  1891 
for  $100.  They  agree  that  $50  shall  be  ''liquidated  damages  " 
for  the  non-performance  of  this  contract.  On  August  1,  1891  Mack 
refuses  to  sell.  At  this  time  Johnson  is  able  to  buy  stock  in  the 
market  for  $110.  Johnson  brings  an  action  for  the  breach  of  con- 
tract and  claims  $50  as  liquidated  damages.     What  decision? 

§  §  28-32.  A  railroad  company  wrongfully  refuses  to  furnish  a 
shipper  with  transportation  for  stove  wood.  May  the  measure  of 
damages  include  profits  which  would  have  been  made  on  a  contract 
with  a  third  person  for  the  sale  of  the  wood? 

In  an  action  for  personal  injuries,  a  book  canvasser,  receiving 
for  his  services  a  certain  percentage  on  sales,  offers  to  testify  to 
the  amount  of  his  annual  sales  for  several  years  prior  to  the  in- 
jur}'.    Is  the  evidence  admissible? 

In  an  action  for  personal  injuries  by  a  railway  coupler  and  switch" 
man,  receiving  $1.50  per  day,  he  is  asked,  as  a  witness,  as  to  his  pros- 
pects of  promotion  to  better  paid  employment.  He  testifies  that  he 
thinks  he  would  have  been  promoted;  that  there  is  "a  system"  by 
which  '*if  a  man  falls  out  you  stand  a  chance  of  taking  his  place," 
and  that  yard  conductors  obtain  a  salary  from  $60  to  $75  per  month. 
Is  the  evidence  of  the  chance  of  promotion  admissible  to  be  sub- 
mitted to  the  jur}  in  connection  with  the  wages  of  employees  in  the 
superior  employment? 

§  §  33,  34.  In  an  action  for  the  price  of  a  steamboat,  the  vendee 
claimes  the  right  to  deduct  from  the  contract  price  the  expense  in- 
curred in  remedying  defects  of  construction  and  the  loss  of  profit  on 
trips  that  might  have  been  made  but  for  the  defects.  What  de- 
cision ? 

§  §  35-37.  In  an  action  for  personal  injuries  may  recovery  be 
had  for  future  pain  and  suffering  if  it  is  reasonably  certain  that  such 
damages  will  necessarily  result? 

The  action  is  by  the  owner  of  land  upon  the  surface  against  the 
lessee  of  coal  seams  below,  for  injury  arising   from   a  subsidence. 


446  APPENDIX  B 

The  lessee  had  the  right  to  make  the  excavation.  The  plaintiff  has 
recovered  before  for  a  prior  subsidence  caused  by  the  same  ex- 
cavation.   What  decision? 

Williams  contracts  to  deliver  to  Watkins  50,000  pairs  of  bicycle 
pedals,  delivery  to  be  made  and  paid  for  in  installments.  After  de- 
livering 2,608  pairs  Williams  refuses  to  go  on,  and  Watkins  sues 
for  breach.    What  damages  can  he  recover? 

What  damages  can  be  recovered  when  the  cause  of  action  is  for 
a  nuisance? 

§  40.  What  relation  must  the  defendant 's  breach  of  duty  bear 
to  the  plaintiff's  damage  in  order  to  make  the  defendant  liable? 

§  §  42-49.  A  package  owned  by  plaintiff  is  negligently  destroyed 
by  defendant.  Is  the  defendant  responsible  for  the  loss  of  jewels  con- 
tained in  it,  although  he  had  no  knowledge  of  the  nature  of  the  con- 
tents? 

A  physical  injury  stimulates  a  pre-existing  tendency  to  disease 
and  causes  an  outbreak.  Is  the  defendant  responsible  for  the  ensu- 
ing damage  if  the  tendency  was  caused  by  plaintiff's  voluntary  in- 
temperance ? 

In  an  action  by  a  i^ailway  company  for  maliciously  causing  the 
arrest  of  an  engineer,  while  engaged  in  running  plaintiff's  train,  will 
the  damages  include  the  delay  of  the  train? 

§  §  50-53.  Defendant  agrees  to  supply  plaintiff,  a  butcher,  with 
ice,  knowing  the  plaintiff's  object  to  be  to  keep  meat  fresh,  but  fails 
to  do  so,  in  consequence  of  which  a  considerable  amount  of  meat  is 
spoiled.  Does  the  measure  of  damages  include  the  value  of  the 
meat  spoiled? 

French  agrees  to  furnish  a  coal  company  with  a  locomotive  engine 
to  draw  coal  cars.  French  knows  that  it  is  for  a  track  of  unusual 
with,  and  that  such  engines  are  not  to  be  hii-ed,  when  wanted. 
He  does  not  know  that  the  possession  of  the  engine  would  enable  the 
company  to  mine  more  coal  than  without  it.  The  company  is  able 
to  transport  coal  by  other  means  at  a  greater  cost.  What  will  be  the 
measure  of  damages  for  breach  of  the  agreement? 

Buck  having  contracted  to  sell  and  deliver  to  a  railroad  400  tons 
of  steel-capped  rails,  engages  the  defendant  to  supply  the  rails,  the 
latter  having;  notice  of  the  purpose  intended.  Buck  has  a  patent  for 
capping  the  rails,  and  there  is  no  market  price  for  such  an  article. 
Is  Buck  entitled,  on  breach,  to  the  profits  he  would  have  realized? 

§  §  54-56.  Hale  employs  Gale  to  effect  insurance  upon  his  prop- 
erty, which  Gale  neglects  to  do.     Hale  knows  of    this    and    makes 


APPENDIX  B  447 

no  attempt  to  get  someone  else  to  insure  his  property.  Can  Hale  hold 
Gale  for  a  loss  by  fire? 

§61.    What  is  meant  by  non-pecuniary  damage? 

§  70.  In  an  action  for  non-delivery  of  oil  sold,  is  it  error  to  re- 
fuse evidence  that  at  about  the  time  of  the  delivery  the  principal 
oil  dealers  mide  a  combination  to  create  an  artificial  scarcity  and  an 
unnatural  price? 

§74.     In  what  case  will  damages  include  interest? 

§  81.  In  what  cases  involving*  the  sale  of  chattels  can  the  ven- 
dor recover  the  contract  price? 

§  90.  Where  the  purchase  price  is  the  measure  of  damages,  is 
the  recital  of  consideration  in  the  deed  conclusive? 

§  §  100-104.  Parents  sue  for  the  death  of  a  son,  30  years  of 
age.  He  did  not  live  in  the  same  house  with  his  parents  but  near 
them.  He  had  been  in  the  habit  of  visiting  them  and  making  pres- 
ents amounting  to  about  $200  a  year.  What  damages  should  the 
parents  recover? 


APPENDIX  C. 

BANKRUPTCY. 

§  4.     What  is  the  date  of  the  first  English  bankruptcy  law  ? 
"Who  were  amenable  to  it? 

§  5.  In  what  respect  was  the  English  act  of  1705  different  from 
the  first  act? 

How  is  bankruptcy  regulated  in  the  United  States'? 

§  7.  What  effect  has  a  Federal  bankruptcy  act  upon  state  bank- 
ruptcy laws? 

§  8.  What  is  the  difference  between  a  voluntary  and  an  involun- 
tary bankrupt? 

§  9.  What  is  necessary  before  a  natural  person  may  be  a  volun- 
tary  bankrupt? 

§  10.  A  corporation  is  engaged  principally  in  the  business  of  buy- 
ing and  selling  real  estate.  All  the  stock  in  the  corporation  belongs 
to  one  man.  Its  debts  amount  to  $1,000,  Can  it  be  made  an  in- 
voluntary bankrupt? 

Can  a  corporation  organized  for  the  purpose  of  acquiring  and 
holding  stock  in  mining  corporations  be  made  an  involuntary  bank- 
rupt if  its  debts  amount  to  $1,000? 

Can  a  farmer  who  makes  a  profit  of  $2,000  a  year  and  who  owes 
$1,000,  be  made  an  involuntary  bankrupt? 

Olsen  is  engaged  in  cutting  grass  and  trimming  lawns  in  the  sum- 
mer time,  and  shoveling  snow  and  attending  to  fires  in  the  winter 
time.  He  has  some  regular  customers  who  pay  him  by  the  month, 
and  by  others  he  is  employed  and  paid  by  the  job.  His  proceeds 
average  $1,400  a  year.  Can  he  be  made  an  involuntary  bankrupt  if 
his  debts  amount  to  $1,000? 

Two  merchants  are  engaged  in  business  in  partnership.  One  has 
individual  debts  of  $800,  and  the  other  has  individual  debts  of  $700. 
The  partnership  owes  $500.  Can  the  partnership  be  put  into  involun- 
tary bankruptcy? 

§  11.  An  Arizona  corporation  owning  a  reservoir  and  irrigation 
ditches  sells  water  to  farmers.  If  its  debts  amount  to  $1,000  can  it 
be  made  an  involuntary  bankrupt? 

§§  14,  15.     The  petition  states  that  the  corporation  is  chartered 

448 


APPENDIX  C  449 

as  a  printing  company  but  does  not  state  that  the  corporation  actually 
engages  in  such  business.     Is  the  petition  good? 

§  18.  Has  a  creditor,  who  has  received  from  the  debtor  an  as- 
signment and  bill  of  sale  of  his  property  with  knowledge  or  reason- 
able cause  to  believe  that  the  debtor  was  at  that  time  insolvent,  a 
right  to  join  in  the  petition? 

§  §  19,  20.  What  is  meant  by  act  of  bankruptcy?  When  is  an. 
act  of  bankruptcy  not  necessary  in  order  to  permit  a  man  to  go  into 
bankruptcy  ? 

§  §  21-27.  Jones  has  debts  amounting  to  $5,000.  With  the  ex- 
ception of  $7,000  in  the  bank,  he  has  no  property.  He  draws  out 
this  money  and  secretly  purchases  a  piece  of  real  estate,  from 
Heckman.  He  has  the  deed  made  out  as  if  the  land  were  conveyed 
by  Heckman  to  Loring  and  has  this  deed  recorded.  By  a  secret  agree- 
ment between  Jones  and  Loring,  Jones  is  to  get  all  the  rents  and 
profits  from  ;;he  land.    Has  Jones  committed  an  act  of  bankruptcy? 

Mack  has  debts  amounting  to  $6,000.  He  has  personal  property 
worth  $8,000.  He  sells  this  personal  property  for  $2,000  to  his 
sister-in-law  who  takes  the  goods,  keeps  them  in  her  possession  for 
two  days  and  then  delivers  them  back  to  Mack  telling  her  friends 
that  she  is  "going  to  let  him  borrow  them  for  awhile."  Has  Mack 
committed  an  act  of  bankruptcy? 

§  30.  When  is  it  an  act  of  bankruptcy  for  a  debtor  to  give  away 
property  ? 

§  38.  How  may  creditors  force  a  debtor  to  commit  an  act  of 
bankruptcy? 

§  43.  What  are  the  duties  of  the  receiver?  Has  he  power  to 
prosecute  suits  at  law  that  have  been  commenced  by  the  debtor? 

How  long  does  a  receiver  stay  in  oflfice? 

§  §  44-50.  Has  the  trustee  of  a  bankrupt  insurance  company 
power  to  waive  the  performance  of  conditions  by  the  insured? 

What  are  exemption  laws? 

§  §  51-66.  What  property  of  the  bankrupt  does  not  pass  to  the 
trustee  ? 

§  68.  What  power  has  the  trustee  in  regard  to  the  sale  of  prop- 
erty which  has  been  transferred  by  the  bankrupt  in  fraud  of  cred- 
itors? 

§  79.  Has  a  trustee  the  power  to  avoid  a  preference  where  the 
debtor  had  not  the  intent  to  prefer? 

§  82.  An  innkeeper  gives  lodging  to  Watson,  Watson  leaves 
without  paying  his  bill  and  the  innkeeper  holds  his  trunk  as  security 


450  APPENDIX  C 

for  the  bill.  "Watson  was  insolvent  when  he  applied  for  lodging  but 
the  innkeeper  did  not  know  this.  A  month  later  he  is  declared  bank- 
rupt and  the  trustee  claims  a  right  to  the  trunk.  The  innkeeper  con- 
tends that  he  has  a  right  to  have  the  bill  paid  in  full  before  giving 
up  the  trunk.    What  decision? 

§  96.  Fox  has  agreed  with  Locke  not  to  cut  down  certain  shade 
trees  growing  on  his  lot  and  to  pay  a  penalty  of  $1000  if  he  should 
eut  them  down.  Fox  becomes  insolvent.  Has  Locke  a  provable 
claim  against  him  if  Fox  has  not  cut  down  any  trees? 

§  98.  Is  the  trustee  allowed  to  set  up  against  a  claim  the  de- 
fenses which  the  debtor  had? 

§  110.  A  person  discharged  in  bankruptcy  wrote  to  a  creditor 
whose  debt  had  been  disehargd  and  said,  *'I  do  not  calculate  that  you 
will  suffer  any  loss  by  me."    Is  this  sufiScient  to  revive  the  debt? 

Pending  a  suit,  defendant  pleaded  an  adjudication  of  bankruptcy, 
but  subsequently  withdrew  the  plea  and  confessed  ju(?2:nient.  Is  the 
judgment  binding  on  him? 

§  119.  When  is  one  discharge  in  bankruptcy  a  bar  to  a  subse- 
quent discharge? 


APPENDIX  D. 

JUDGMENTS. 

§  2,  3.    How    is    a    judgment    distinguished    from    a     ruling  ? 
From  an  order? 

A  judgment  is  given  by  a  court  and  an  entry  made  on  the  record. 
A  few  days  later  the  record  is  destroyed  by  fire.  Is  the  judgment 
valid? 

§  4.  A  statute  provides  that  the  board  of  health  shall  have  power 
and  it  shall  be  its  duty  to  receive  and  examine  into  the  nature  of 
complaints  made  by  any  of  the  inhabitants  concerning  nuisances  and 
shall  have  power,  after  due  notice  and  hearing,  to  order  the  sup- 
pression and  removal  of  nuisances  and  conditions  detrimental  to 
health  found  to  exist  within  the  limits  of  its  jurisdiction.  Is  this 
board  of  health  a  court? 

§  §  5,  6.  An  action  for  killing  plaintiff's  horse  is  brought  before 
a  justice  of  the  peace  who  has  jurisdiction  to  hear  cases  involving 
$200  or  less.  Plaintiff  and  defendant  both  agree  that  the  horse  was 
worth  $200  and  the  plaintiff  asks  for  $200  damages.  In  fact  the 
horse  was  worth  $300  and  this  amount  is  the  correct  measure  of 
plaintiff's  damage.  Has  the  justice  jurisdiction  to  hear  the  case? 
Would  a  judgment  for  $300  damages  be  valid? 

§7.  White  contracts  with  Green  in  Illinois  to  convey  to  him 
certain  property  in  Kansas.  At  the  time  for  performance  White 
refuses  to  convey  and  Green  brings  an  action  against  him  in  Illinois 
for  specific  performance.  The  coui't  orders  him  to  convey.  What 
effect    has  this  order  upon  the  title  to  the  property? 

§  §  8,  9.  Mack  wished  to  sue  Jackson  for  a  breach  of  contract. 
Process  was  served  on  Jackson's  brother  who  resided  with  him 
and  who  promised  to  deliver  the  process  to  Jackson  but  failed  to  do 
so.  Judgment  was  entered  against  Jackson  by  default.  Was  the 
judgment  binding? 

§  16.  In  Illinois  what  constitutes  the  formal  record  of  the  pro- 
ceedings of  a  suit? 

§  18.     How  are  justice  court  records  kept  ? 

§  19.  A  judgment  is  rendered  but  the  clerk  neglects  to  record  it. 
A  year  later,  the  judge,  on  his  unsupported  recollection,  orders  the 
record  made.    Is  the  judgment  binding? 

451 


452  APPENDIX  D 

§  22.  The  record  of  the  judgment  does  not  show  the  form  of 
action.     Is  the  judgment  good? 

§  24.  Jones  brings  an  action  of  replevin  against  Wilkes  for  a 
horse.  Judgment  is  entered  for  Wilkes,  the  record  stating  that  he 
had  title  and  right  to  possession.  Is  this  record  a  good  defense  to 
an  action  b,v  Jackson  for  the  possession  of  the  horse? 

§  27.  What  is  the  difference  between  amending  a  record  and 
amending  a  judgment  ? 

§  §  28-30.  A  judgment  contains  a  clerical  error  in  computation 
which  appears  on  the  face  of  the  record.  What  remedy  has  the  in- 
jured party  after  the  term? 

A  judgment  in  favor  of  defendant  and  against  plaintiff  is  procured 
by  fraud  and  collusion  between  plaintiff's  attorney  and  defendant. 
What  remedy  has  plaintiff  after  th'e  term? 

§  §  35-41.  In  a  civil  action  to  establish  dower,  can  the  plea  of 
res  judicata  be  supported  by  the  acquittal  of  the  alleged  husband  on 
a  trial  for  bigamy  in  having  married  the  plaintiff  in  the  suit  for 
dower  ? 

§  42.  Is  a  corporation  which,  with  knowledge  that  an  attorney 
had  filed  a  bill  in  its  name,  allows  the  suit  to  be  prosecuted  to  final 
decree  without  objection,  bound  by  the  decree  if  the  attorney  was 
not  employed  by  it? 


APPENDIX  E. 

ATTACHMENTS,   GARNISHMENTS,  AND  EXECUTIONS. 

§1.     How  is  a  decree  of  divorce  executed? 

§  2.  What  was  the  ancient  method  commonly  used  in  enforcing 
judgments  and  decrees'? 

§5.  How  does  replevin  differ  from  the  other  common  law 
actions  ? 

§  6.    What  is  a  capias  ad  respondendum  1 

§  7.  In  a  certain  state,  by  statute,  garnishments  issue  only  as 
a  form  of  execution  after  judgment,  Jones  brings  an  action  against 
White  for  an  alleged  breach  of  contract.  Can  he  garnish  past  due 
wages  of  White's  in  the  hands  of  White's  employer? 

§  8.    What  can  be  sold  under  a  writ  of  fieri  facias  1 

§  10.    What  can  be  sold  under  a  writ  of  levari  facias? 

§  12.  How  much  of  the  debtor's  land  could  be  taken  by  the 
writ  of  elegit? 

§  14.  What  is  the  difference  between  a  writ  of  habere  facias 
Beisinam  and  habere  facias  possessionem? 

Which  is  the  proper  one,  where  the  debtor  is  a  life  tenant? 

§  17.  What  is  the  general  rule  in  regard  to  the  issuance  of 
executions  ? 

§  19.  In  what  states  does  the  issuance  of  an  execution  not 
depend  upon  the  form  of  the  action? 

§  20.  Defendant  hired  a  barge  from  plaintiffs  for  a  certain  sum 
per  day,  with  an  agreement  that,  if  it  were  not  returned  in  as  good 
condition  as  when  hired,  defendant  was  to  pay  the  agreed  value  of 
the  barge  as  upon  a  sale.  The  barge  was  returned  in  a  worthless 
state.  Will  the  plaintiff's  claim  support  an  attachment  under  a  statute 
allowing  the  use  of  attachment  in  actions  on  conracts? 

§  22.  Attachment  was  issued  on  the  ground  that  defendant  had 
disposed  of  and  concealed  property  with  intent  to  defraud  creditors. 
On  motion  to  dissolve  the  attachment  defendant  proves  that  the 
property  alleged  to  have  been  secreted  belonged  to  his  wife.  Plain- 
tiff then  proved  that  defendant  had  not  enough  property  subject  to 
execution  to  satisfy  plaintiff's  demand  which  by  statute  is  a 
ground  for  issuing  an  attachment.    Will  the  attachment  be  dissolved? 

453 


454  APPENDIX  E 

Would  it  have  been  otherwise  if  both  grounds  had  been  given  by 
the  plaintiff  for  the  issuance  of  the  attachment? 

A  statute  allows  the  issuance  of  an  attachment  on  the  ground 
that  the  defendant  has  not  enough  property  to  satisfy  the  demand. 
Plaintiff  sues  out  an  attachment  to  secure  two  demands  and  proves 
that  the  defendant  has  not  enough  property  to  satisfy  both  demands. 
On  motion  to  dissolve  the  attachment  defendant  proves  that  one  of 
the  demands  was  not  due.     Will  the  attachment  be  dissolved? 

Attachments  were  issued  against  two  defendants  on  debts  for 
which  they  were  jointly  liable.  One  of  the  grounds  of  each  attach- 
ment was  that  the  defendant  did  not  have  property  enough  subject  to 
execution  to  satisfy  the  debts.  The  defendants  together  owned 
enough  property  to  satisfy  any  one  of  the  debts.  Can  the  attach- 
ment be  sustained  against  either  one  of  the  defendants? 

An  attachment  was  granted  on  the  gi'ound  that  defendant  had  not 
enough  property  to  satisfy  plaintiff's  demand.  On  a  motion  to  dis- 
solve the  attachment  it  was  proved  that  the  debt  included  money 
loaned  to  defendant  by  plaintiff's  wife.  Will  the  attachment  be 
sustained  as  to  the  whole  demand? 

§  24.  February  12,  1901,  the  declaration  is  filed.  February  15, 
an  attachment  is  issued  and  February  23  the  summons  is  served.  Is 
the  attachment  good? 

Will  an  attachment  issued  after  judgment  be  sustained? 

§  25.  Judgment  is  confessed  before  the  clerk  in  vacation  and  ex- 
ecution issued  before  the  judgment  is  entered  of  record.  Is  the  exe- 
cution valid? 

§  26.  Judgment  is  rendered  against  defendant  April  1,  1905.  It 
is  entered  of  record  on  April  15,  1905.  April  5,  1906  execution  is 
issued  and  the  property  sold.  Jones,  the  purchaser  at  the  execu- 
tion sale,  brings  ejectment  against  the  defendant,  who  resists  on  the 
ground  that  the  execution  was  void.  What  decision  at  common 
law? 

§  29.  Watson  as  the  guardian  of  Johnson,  an  infant,  brings  an 
action  against  defendant  for  a  breach  of  contract.  Judgment  is  ren- 
dered for  plaintiff.  After  the  death  of  Watson,  execution  is  issued. 
Is  the  execution  void?  Suppose  the  judgment  had  been  revived  on 
scire  facias  after  the  death  of  Watson? 

§  33.  Judgment  is  rendered  against  defendant.  Farson,  a  third 
party,  pays  the  debt  due  from  defendant  to  plaintiff.  May  Farson 
take  out  an  execution  against  defendant? 


APPENDIX  E  455 

§  34.  Black  buys  property  at  an  execution  sale  held  under  an 
execution  issued  in  the  name  of  the  judgment  creditor  without  his 
consent.    Does  Black  get  title  to  the  property  1 

§  37.  Judgment  in  an  action  on  a  bond  is  taken  against  the 
surety.  Execution  is  issued  against  the  principal  in  the  bond  and 
his  property  sold.  Does  an  innocent  purchaser  at  the  execution  sale 
get  good  title? 

§  38.  Judgment  is  rendered  against  Watkins,  an  infant,  for 
breach  of  contract.  The  statute  provides  that  infants  shall  not  be 
liable  on  contracts  except  for  necessaries.  This  was  not  a  contract 
for  necessaries.  Execution  is  issued  against  defendant  and  his  prop- 
erty sold.    Does  a  purchaser  at  the  sale  get  good  title? 

§40.     Can  a  court  holding  a  debtor's  property  be  a  garnishee? 

May  the  property  of  a  railroad  be  seized  on  execution? 

§  41.    Where  does  a  court  get  its  power  to  issue  execution  ? 

§  43.  In  what  cases  can  execution  be  issued  on  a  judgment  that 
has  been  appealed  from? 

§  44.  Is  an  execution  issued  by  an  officer  who  was  the  plaintiff 
in  the  suit,  valid? 

§  45.  A  statute  provides  that  before  any  attachment  shall  be 
executed,  the  plaintiff  shall  make  and  annex  thereto  an  affidavit 
specifying  the  indebtedness,  and  another  section  prohibits  the  issu- 
ance of  an  attachment  unless  the  amount  stated  in  such  affidavit 
exceeds  $200.  The  amount  of  indebtedness  was  left  blank  in  the  af- 
fidavit and  was  filled  up  after  the  attachment  was  executed.  May 
the  attachment  be  attacked  collaterally? 

§  47.  Is  an  attachment  on  an  affidavit  sworn  to  ten  days  before 
the  issuance  of  the  writ,  valid? 

§  48.  A  statute  allows  attachments  on  the  gTound  that  the  debtor 
has  absconded  or  concealed  himself  to  defraud  creditors.  Can  an 
attachment  be  sustained  founded  on  a  complaint  in  the  affidavit  that 
"defendant  has  privately  removed  himself  out  of  the  county,  or  so 
absconded  and  concealed  himself  that  process  cannot  be  served"? 

§  49.  The  affidavit  alleges  indebtedness  by  Jones,  a  member  of 
the  firm  of  Jones  and  Smith,  to  Walker.  Can  the  firm  be  charged  as 
garnishee  ? 

§  51.  Why  is  a  bond  usually  required  before  the  issuance  of  a 
writ  of  attachment  and  not  in  the  ease  of  garnishments? 

§52.    What  is  the  venue  of  a  process? 

What  should  the  body  of  the  process  contain? 

Vol.  X— 31 


456  APPENDIX  E 

§  53.  What  effect  has  a  judgment  upon  an  invalid  process  issued 
before  judgment? 

§  §  54,  55.  The  clerk 's  signature  at  the  end  of  the  process,  as 
required  by  statute,  is  left  off.  Will  an  execution  sale  under  such  a 
process  be  held  void  on  direct  attack?    On  collateral  attack? 

§  63.  A  justice  whose  jurisdiction  is  limited  to  $100  issues  a 
writ  of  attachment  in  an  action  to  recover  $153  on  two  notes,  each 
providing  that  a  justice  should  have  jurisdiction  to  the  amount  of 
^00.    Will  the  writ  protect  an  officer  executing  it? 

Will  a  process  of  attachment  issued  under  an  unconstitutional 
law  protect  the  ofiScer  executing  it? 

A  writ  is  made  returnable  to  the  municipal  court  at  a  term  more 
'ban  60  days  after  it  was  made,  contrary  to  the  provisions  of  a 
statute.  Will  a  sheriff  who  attaches  property  under  the  writ  be 
protected  ? 

A  statute  authorizes  the  issue  of  an  attachment  where  a  resi- 
dent debtor  secretly  leaves  the  state  with  intent  to  defraud  his  cred- 
itors. The  attachment  stated  that  defendant,  a  resident  of  New  York 
City,  had  absconded  from  the  city  with  intent  to  defraud  his  cred- 
itors. Will  a  sheriff  making  a  levy  under  this  attachment  be  pro- 
tected? 

§  64.  How  can  an  officer  protect  himself  if  he  is  in  doubt  as  to 
whether  the  process  under  which  he  is  going  to  act  will  protect  him 
or  not? 

An  officer  innocently  takes  property  belonging  to  Black  under  a 
process  issued  against  Green.  Black  sues  the  officer  and  recovers 
damages.  Has  the  officer  recourse  to  the  creditor  for  reimbursement 
if  no  bond  of  indemnity  was  given.  Could  he  recover  on  an  express 
promise  to  indemnify? 

§  56.  An  attachment  is  issued  in  X  county,  returnable  to  a  court 
in  Y  county.  The  defendant  appears  in  the  court  in  X  county  which 
issued  the  writ  and  pleads  to  the  merits.    Is  the  attachment  valid? 

§  57.  A  judgment  was  obtained  in  favor  of  plaintiff  as  adminis- 
trator. The  execution  under  which  the  land  was  sold  recited  the 
judgment  as  in  favor  of  the  plaintiff  in  his  private  capacity.  Did 
the  purchaser  at  the  sale  acquire  a  good  title? 

One  of  two  joint  plaintiffs  dies  after  the  judgment  is  rendered. 
No  entry  of  his  death  is  made  in  court.  Should  the  execution  be 
taken  out  in  the  names  of  both  the  plaintiffs? 

Is  an  execution  against  an  administrator  invalid  if  it  does  not 
show  on  its  face  whether  it  is  to  be  satisfied  out  of  the  individual 


APPENDIX  E  457 

property  of  the  defendant  or  out  of  the  property  of  the  deceased  in 
his  hands'? 

§60.  A  statute  provides  that  a  writ  of  attachment  without  a 
seal  is  of  no  validity.  January  12,  1906,  an  attachment  without  a 
seal  is  issued  to  secure  a  deht  not  yet  due.  January  20,  1906,  suit  is 
commenced  and  judgment  rendered  for  plaintiff  on  March  2,  1906. 
In  April,  1906,  the  legislature  passes  an  act  providing  that  all  at- 
tachments hereafter  or  heretofore  issued  without  seals  shall  be  valid 
if  otherwise  conforming  to  the  law.  Is  the  attachment  issued  Jan- 
uary 12,  1906,  valid? 

§  62.  What  are  the  three  means  that  an  officer  has  of  protect- 
ing himself? 

§  66.  Does  delivery  of  process  to  an  officer  give  him  a  property 
right  in  the  property  which  the  process  directs  him  to  take? 

§  70.  Can  an  action  be  maintained  against  an  officer  for  using 
an  automobile  which  he  has  seized  under  a  writ  of  attachment? 
By  whom? 

§74.  A  statute  provides  that  a  writ  of  attachment  must  be 
served  at  least  four  days  before  the  time  for  appearance  mentioned 
in  the  process.  It  is  not  served  within  this  time  and  judg-ment  is  en- 
tered against  defendant  by  default.  The  property  is  sold.  Can  the 
purchaser  prevail  in  an  action  of  ejectment  against  defendant? 

§  80.  Jones,  a  creditor  of  Ford,  garnishes  money  in  the  hands  of 
Latham,  whose  defense  is  that  the  money  is  due  not  to  Ford  individ- 
ually but  to  the  firm  of  Ford  and  Smith.    What  decision? 

§83.  Wilkes  is  suing  Watson  for  damages  for  breach  of  con- 
tract. It  is  doubtful  whether  he  will  recover  or  not.  Can  Watson 
be  charged  as  garnishee  by  a  creditor  of  Wilkes? 

§  88.  Why  is  property  on  the  defendant 's  person  exempt  from 
process  ? 

§  92.    How  is  a  levy  on  land  effected  under  modem  statutes? 

§  98.  What  is  the  effect  of  failure  to  give  statutory  notice  in 
the  case  of  executions?    Attachments?     Garnishments? 

§  101.  In  the  absence  of  statute,  what  is  the  modern  American 
rule  in  regard  to  the  time  when  a  creditor's  lien  on  chattels  begins? 

§  106.  May  a  lien  be  lost  by  order  of  court  after  a  levy  has  been 
made? 

§111.  A  claimant  seeks  to  have  the  levy  quashed  by  showing 
that  the  property  attached  does  not  belong  to  the  defendant.  Is  this 
sufficient? 


458  APPENDIX  E 

§  118.  Property  is  attached.  Later  a  judgment  is  obtained 
against  the  defendant.  What  is  necessary  in  order  to  realize  on 
the  property? 

§  122.  Does  a  purchaser  at  an  execution  sale  get  good  title  if 
the  officer  does  not  account  for  the  proceeds'? 

§  129.  A  creditor  gets  a  judgment  for  $100.  The  defendant 
gives  him  a  horse  worth  $70  and  gets  a  receipt  in  full.  Is  the 
creditor  entitled  to  an  execution  for  $30? 

§  132.  In  what  cases  may  an  appeal  be  maintained  after  the 
judgment  has  been  satisfied? 


LAW  LIBRARY 

UNIVEJZ^^ITY  O^:'  CALIFORNIA 
l^OS  AI^iGELES 


ff^CILlTV 


